HomeMy WebLinkAboutPlanning 111417 MinutesKAUAI PLANNING COMMISSION
REGULAR MEETING
November 14, 2017
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair Keawe at 9:04 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A -
2B. The following Commissioners were present:
Chair Kimo Keawe
Vice Chair Roy Ho
Ms. Kanoe Ahuna
Ms. Donna Apisa
Mr. Wade Lord (entered at 9:05 a.m.)
Mr. Sean Mahoney
Ms. Glenda Nogami Streufert
The following staff members were present: Planning Department — Director Michael Dahilig,
Chance Bukoski, Jody Galinato, Kaaina Hull, Leslie Takasaki; Office of the County Attorney —
Deputy County Attorney Jodi Higuchi Sayegusa; Office of Boards and Commissions —
Administrator Paula M. Morikami, Commission Support Clerk Darcie Agaran
Discussion of the meeting, in effect, ensued:
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Chair Keawe called the meeting to order at 9:04 a.m.
ROLL CALL
Planning Director Michael Dahilig_ Commissioner Ahuna.
Ms. Ahuna: Here.
Mr. Dahilig: Commissioner Lord. Commissioner Streufert.
Ms. Nogami Streufert: Here.
Mr. Dahilig: Commissioner Mahoney.
Mr. Mahoney: Here.
Mr. Dahilig: Commissioner Apisa.
Ms. Apisa: Here.
Mr. Dahilig: Vice Chair Ho.
Mr. Ho: Here.
Mr. Dahilig: Chair Keawe.
Chair Keawe: Here.
Mr. Dahilig: Mr. Chair, you have six (6) members present this morning.
APPROVAL OF AGENDA
Mr. Dahilig: Next on your agenda is the approval of this agenda. The Department would
recommend taking all the items up to Item F in order, then taking... sorry, up to Item G — sorry—
in order.
Chair Keawe: To G, okay.
Mr. Dahilig: And then taking Item K, which is the Committee Reports, specifically the
Subdivision Committee, and then go into Executive Session under Item H, and then if the
hearing is closed, go into action on Item F.2.a. before resuming with the General Business
Matters.
Chair Keawe: Okay.
Mr. Mahoney: Chair, move to approve the adjusted agenda.
Chair Keawe: Do I have a second?
Ms. Nogami Streufert: Second.
Chair Keawe: It has been moved and seconded to approve the amended agenda. All those in
favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair.
MINUTES of the meeting(s) of the Planning Commission
Regular Meeting of September 26, 2017
Regular Meeting of October 10, 2017
Contested Case Calendar of October 10 2017
Mr. Dahilig: We are on Item D. These are the minutes of the meetings of the Planning
Commission. You have regular meeting minutes of September 26, 2017 and October 10, 2017,
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as well as the minutes of the Contested Case Calendar of October 10, 2017 for your approval this
morning.
Ms. Apisa: Move to approve.
Mr. Mahoney: Second.
Chair Keawe: It has been moved ... I am assuming we are going to do them all at once.
Ms. Apisa: All three (3), correct.
Chair Keawe: Okay.
Ms. Apisa: September 26`y', October 10'h, and the Contested Case Calendar of October 10th.
Chair Keawe: Thank you. Do I have a second?
Mr. Mahoney: Second.
Mr. Lord entered the meeting at 9:05 a.m.
Chair Keawe: It has been moved and seconded to approve all three (3) meetings. All those in
favor? (Unanimous voice vote) Any opposed? (None) Motion carries 7:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair.
RECEIPT OF ITEMS FOR THE RECORD
Mr. Dahilig: We are on Item E. This is Receipt of Items for the Record. There has been
supplemental information that has been submitted to the Planning Commission concerning Item
F.3.a. and Item F.4. that has been circulated. It should look like this. They should just be
received for the record.
Chair Keawe: Okay. We have two (2) items that were received for the record; one was
regarding the Zoning Amendment 2018-1, the Baird Family Trust and the other one was from the
County Council. Does everybody have those? If you do, I will entertain a motion to receive.
Mr. Mahoney: Chair, move to receive the items for the record.
Chair Keawe: Do I have a second?
Ms. Nogami Streufert: Second.
Chair Keawe: It has been moved and seconded to receive. All those in favor? (Unanimous
voice vote) Any opposed? (None) Motion carries 7:0. Thank you.
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Mr. Dahilig: Thank you, Mr. Chair.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing
Mr. Dahilig: We are now on Item F. These are Hearings and Public Comment. We do not have
any hearings that are continued under Item F.1.
New Agency Hearing
Special Management Area Use Permit SMA(U)-2018-4 to construct a single-family
residence on a parcel situated along- the eastern side of Pane Road in Po`ipu, approx. 250
ft. north of its intersection with Hoone Road. further identified as Tax Mab Kev 2-8-
018:004, and containing a land area of 12,404 sq. ft. = Lau Family Trust.
Mr. Dahilig: Under Item F.2., we have a new agency hearing for Special Management Area Use
Pen -nit SMA(U)-2018-4. This is to construct a single-family residence on a parcel situated along
the eastern side of Pane Road in Po`ipu, approximately 250 feet north of its intersection with
Hoone Road, farther identified as Tax Map Key 2-8-018 Parcel 004, and containing a total land
area of 12,404 square feet. The applicant is the Lau Family Trust.
Mr. Chair, the Department would recommend opening the agency hearing at this time.
Chair Keawe: We will open the agency hearing for this particular item.
Mr. Dahilig: Mr. Chair, I do have one (1) individual signed up to testify for this agency hearing
and that is Geoffrey Henson. Geoffrey Henson.
Chair Keawe: Mr. Henson, will you please come forward? If you could pull the mic up and
click the button up towards you on the top. There you go. Introduce yourself, please.
Mr. Geoffrey Henson: My name is Geoffrey Henson. I live and have owned a property at 2232-
A Pane Road, which is just north of the Lau Trust's property. That house was built by Brent
Olson and he has built two (2) with an SMA approval. I originally tried to buy that property
from the Lau's. They said they weren't going to develop it and then they said they would this
last year. They started building the single-family home, supposedly, with two (2) bedrooms
approximately 2,600 square feet. Somebody said to me that is the largest 2 -bedroom house built
in this area. Pane Road has single-family homes and they have now submitted the SMA to do a
3 -bedroom house of, I think, around 3,400 square feet. My concern is ... I understand that the
original plans for the first house contained a kitchen both upstairs and downstairs; that was
whited out in the original plans. It still retains a sink in the plans and I am worrying about the
conversion after the property is completely developed as far as those two (2) houses go. The 2 -
bedroom house will be converted to two (2) units. According to the plans, it is very easy to just
put up a wall and since the utilities, plumbing and electric, are already there to convert it into a
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two -unit in disregard of SMA regulations. You could very easily add another bedroom. I think
the Planning Commission should look at that very carefully to see that a conversion doesn't take
place in the future. That is basically what I want to point out.
Chair Keawe: Alright. Thank you very much, sir.
Mr. Henson: Thank you.
Mr. Dahilig: Mr. Chair, that is all I have signed up to testify. I would recommend making a
final call for any final public testimony.
Chair Keawe: Any final testifiers on this particular issue?
Mr. Dahilig: Seeing the absence, Mr. Chair, the Department would recommend closing the
agency hearing at this time.
Chair Keawe: We will go ahead and close. Can I have a motion to close?
Mr. Mahoney. Chair, move to close the agency hearing.
Ms. Apisa: Second.
Chair Keawe: It has been moved and seconded to close the agency hearing on this item. All
those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 7:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair.
Continued Public Hearing
Zoning Amendment ZA-2018-1: Change from Open District (0) to Agriculture District
(A). Parcel Location: Located approx. 500 ft. west of the Kainahola Road/Kawaihau
Road intersection in Kapa`a Homesteads, further identified as 6765 Kawaihau Road, Tax
Map Key: (4) 4-4-013:002, and containing a total area of 3.377 acres = Baird Family
Limited Partnership. [Director's Report and Supplement No. 1 to Director's Report
received 10/10/17; hearing deferred 10/10/17.1
Mr. Dahilig. We are now on Item F.3. This is Continued Public Hearing. This is a Zoning
Amendment ZA-2018-1 change from the Open District (0) to Agriculture District (A). Parcel
location approximately 500 feet west of the Kainahola Road/Kawaihau Road intersection in
Kapa`a Homesteads, further identified as 6765 Kawaihau Road, Tax Map Key (4) 4-4-013 Parcel
002, and containing a total area of 3.377 acres. The applicant is the Baird Family Limited
Partnership. There was a Director's Report and Supplement No. 1 received on 10/10/17 with the
hearing deferred on 10/10/17.
Mr. Chair, the Department would recommend continuing the open public hearing at this time.
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Chair Keawe: Is there anyone in the audience that wishes to testify on this4particular item?
Mr. Dahilig: Mr. Chair, the Department does not have anybody signed up to testify on this
particular item. Procedurally, I think there are some concerns regarding this particular
application. Is Mr. Nakamura here? No. We have been in contact with the representative for
the applicant and there are some, I guess, issues concerning neighbors submitting some
testimony regarding this item. They have asked us to defer this item until well into next year.
So at our request, we would ask the Commission to continue this public hearing to the first
meeting of June 2018, if that is possible.
Chair Keawe: Okay. Does everybody understand what is being asked? So we are looking at
deferring this particular issue until the meeting in June of 2018. Mr. Ho.
Mr. Ho: The reason you are asking for this deferral is you are waiting for Mr. Nakamura? Is
that the attorney? Nakamura?
Mr. Dahili . Yes. Mr. Nakamura has been in contact with us concerning this; he has been
working with our deputy. What they are concerned about is that, through the process up to this
point, they have received a number of testimonies from their neighbors that seem to be raising
some pretty pertinent concerns regarding the application and they would like the opportunity to
work it out with those neighbors first before proceeding with this application. We see no
objection to give leave to allow thein to at least try to smooth things out with the neighbors
before trying to proceed with the application.
Chair Keawe: Any other questions regarding this particular application? If not, are we ready to
make a decision?
Ms. Apisa: I would move to approve the extension.
Mr. Dahilig: It would just be to continue the hearing.
Ms. Apisa: Continue the hearing.
Mr. Dahilig: To the first meeting in June 2018.
Ms. Apisa: To June 28, 2018.
Chair Keawe: Okay. Do I have a second?
Ms. Ahuna: Second.
Chair Keawe: It has been moved and seconded to defer the meeting until the first meeting in
June of 2018. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion
carried 7:0.
Mr. Dahilig: Thank you, Commissioners.
New Public Hearing
Zoning Amendment ZA-2018-2: A bill for an ordinance amending Chapter 8, Kauai
County Code 1987, as amended, introducing legislation that addresses "Additional Rental
Units." The proposal amends Section 8-1.5 of the KCC by adding the definition of
"Additional Rental Unit" and Chapter 8 of the KCC b ay dding a new article, entitled
"Additional Rental Units" = Kaua `i Countv Council.
Mr. Dahilig: We are now on Item FA. This is New Public Hearing. This is the public hearing
for Zoning Amendment ZA-2018-2. This is a bill for an ordinance amending Chapter 8, Kauai
County Code 1987, as amended, introducing legislation that addresses "Additional Rental
Units". The proposal amends Section 8-1.5 of the Kauai County Code, adding a definition of
"Additional Rental Unit" and a new article entitled "Additional Rental Units". This is something
that has come down from the Kauai County Council as a bill for reading.
The Department would recommend opening the public hearing at this time.
Chair Keawe: Alright. We are going to open the public hearing for this particular item, which is
Zoning Amendment ZA-2018-2.
Mr. Dahilig: Mr. Chair, I do not have anybody signed up to testify on this particular agenda
item. I do want to note that there was testimony from the Contractors Association of Kauai that
was received as part of the notice for this hearing. I also do want to mention that we just
received testimony from the Hanalei to Hd'ena Community Association as well.
Chair Keawe: Mr. hnparato, introduce yourself and have a seat, please.
Mr. Carl Imparato: Thank you. Good morning. My name is Carl Imparato and I am speaking
on behalf of the Board of Directors of the Hanalei to Hd'ena Community Association. The
Board offers the following testimony on the proposed zoning amendment, and whatever the
zoning amendment merits might be, we feel that of greater importance is that the County does
not amend the CZO in a way that threatens the safety of residents or the character of our
communities. So we are asking that this zoning amendment be amended by adding the following
two (2) conditions. No. 1, that no additional rental unit shall be allowed on any parcel that is
located within the Hanalei, Wainiha, Hd'ena tsunami evacuation zone; no additional rental unit
be allowed on any parcel located outside the Visitor Destination Area on which there is a Non -
Conforming Use Certificate for a single-family transient vacation rental; and that no additional
rental unit be allowed on any parcel who's individual wastewater system is a cesspool. The
second thing we are asking is that there be a condition added that the development plan and
Special Treatment District standards will supersede those in this section. The reasons for this are
four -fold. First of all, the County should not create incentives for any new development that
would degrade the safety of communities in the event that we have to rapidly evacuate the
communities for a tsunami. This is critically important in the Hanalei, Wainiha, Hd'ena areas
where the rapid evacuation of the tsunami zone is already not possible because of the tremendous
increase we have seen in the number of tourists and tourist vehicles west of Princeville and the
increased population density associated with Non -Conforming TVRs. So measures need to first
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be enacted and implemented to resolve that important safety problem prior to encouraging any
density increases that would increase the problem. Secondly, additional rental units shouldn't be
allowed on parcels that operate TVRs outside the VDAs. The average number of occupants in
single-family TVRs is already greater than the average number of occupants in residential
parcels, so additional density and community burdens should not be allowed on those kinds of
parcels. Third, cesspools are out-moated wastewater systems, so they contribute to
contamination of coastal and stream waters, especially in our area, so the County shouldn't
encourage any additional development that would further degrade the island's waters. And
fourth, Kaua`i's communities should be allowed to detennine their own character and to address
their own unique needs through the local community development plans. I thank you for
considering the changes that we have requested. We believe that they will strengthen this
proposed zoning amendment by addressing important issues and avoiding unintended negative
consequences. Thank you very much.
Chair Keawe: Thank you. Do we have anyone else to testify?
Mr. Dahilig: Mr. Chair, given the testimony on this, I believe that there are some items based on
a, I guess, pre -discussion with our commissioners that there may be concern whether or not to
proceed quickly on this or not. So what would probably snake sense is that if the Commission
would like to act on this item today, that it maybe defer until the action item to decide whether to
close the hearing or not. I would leave it to the Commissioners' discretion or wisdom as to
whether closing this at this time would be prudent given, again, some of the testimony, as well
as ... I know that a couple commissioners do have some questions concerning the bill.
Ms. Rayne Regush: Cannot hear in the back.
Mr. Dahilig: I'm sorry. This is as loud as I can talk, Rayne.
Ms. Regush: Thank you.
Mr. Dahilig: Yes, this is as loud as I can talk. So at this point, I think what is probably
appropriate is maybe deferring this item until the action item under New Business and then
maybe deciding that if you do want to proceed with the bill, to close the public hearing at that
time.
Chair Keawe: Okay. Commissioners, do we understand what is ... okay, so the idea was to defer
this until the action item — still on the agenda — and then deal with it there. Based on the
testimonies we've heard, we may want to investigate a little bit further and deliberate a little bit
further. Does everybody understand? Okay, so I will entertain a motion to defer.
Ms. Nogami Streufert: I move to defer until the action item.
Ms. Apisa: Second.
Chair Keawe: It has been moved and seconded. All those in favor? (Unanimous voice vote)
Any opposed? (None) Motion carries 7:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair.
All remaining public testimony pursuant to HRS 92 (Sunshine Law)
Mr. Dahilig: We are on Item F.5. This is all remaining public testimony pursuant to HRS 92.
We do not have anybody signed up to testify on any other agenda item this morning.
The Department would recommend making a final call for any additional testimony.
Chair Keawe: This is a final call. Anyone in the audience wishing to testify on any other issue
before the Commission?
Mr. Dahilig: Thank you, Mr. Chair.
CONSENT CALENDAR
Status Reports
Director's Report(s) for Proiect(s) Scheduled for Agency Hearing on 11/28/17 NONE
Mr. Dahilig. We are on Item G. This is Consent Calendar. We do not have any items for
consent this morning.
COMMITTEE REPORTS
Subdivision
Mr. Dahilig: We do have one (1) Subdivision Committee report that has been circulated to the
Commission for its review.
Chair Keawe: Okay. Mr. Ho, would you like to review the Subdivision Committee report?
Mr. Ho: We looked at two (2) items this morning. Kukui`ula asked for a subdivision approval
for their development, thirteen (13) lots, that was approved. Visionary LLC/Ahukini Makai —
they asked for an extension of a year and we gave them until 2019 for an extension because there
is quite a bit of work to be done that they have to come back with. We didn't think that they
could complete the work and be back with us by 2018, so we gave them basically a year and a
half to complete their work and get back to us.
Chair Keawe: That was at the discretion of the Committee.
Mr. Ho: Yes.
Chair Keawe: Okay.
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Mr. Ho: And then they will report back to the Committee by July 12, 2018 with a progress
report for us.
Chair Keawe: Okay.
Mr. Ho: And that was our meeting this morning.
Chair Keawe: Okay. Any questions? Cormnissioner Streufert.
Ms. Nogami Streufert: The previous extension expired in 2013.
Mr. Ho: This is for Visionary?
Ms. Nogami Streufert: Right.
Mr. Ho: Yes.
Ms. Nogami Streufert: So between 2013 and 2017, there was nothing that was going on?
Ms. Apisa: I will address that. No, the primary reason for the extension is they are dealing with
a lot of State and County agencies and trying to coordinate everything. There is roadway,
airports, water ... it is just difficult getting everything coordinated in approvals. It is really July of
2019. If we granted it to July of 2018, it is not even a year and they would be back for another
extension. So they are going to give us a progress report in July of 2018, but they have until July
of 2019.
Ms. Nogami Streufert: Is there any sunset clause on any of this? Or is that just an open-
ended ... we can continue to do extensions?
Mr. Dahilig: Actually, at the end of the day, the extensions are at the discretion of the
Commission. There are many different moving parts with trying to put together a subdivision
like this. I will also say that there are political issues that also come into play. Since the
subdivision lapsed in 2013, there has been a change in Administration at the State level, so there
is also that time play that is being caught up as well. The Department, when we reviewed the
request, didn't seem too phased by the developer asking for this because it is not as if they
haven't been doing best efforts to try to make progress on their tentative approval requirements.
Chair Keawe: I think suffice to say, have we ever seen anything done quickly by the State?
(Laughter in background) Okay. Do we have a motion on the floor?
Mr. Dahilig: No.
Chair Keawe: Alright. Can I have a motion on the floor to approve the Committee report?
Ms. Nogami Streufert: I move to accept or to approve the Subdivision Committee Report No. 6.
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Chair Keawe: Do I have a second?
Mr. Mahoney: Second.
Chair Keawe: It has been moved and seconded to accept the Subdivision Committee report. All
those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 7:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair.
EXECUTIVE SESSION
Pursuant to Hawaii Revised Statutes Sections 92-5(a)(2 and 4), the purpose of this
executive session is to discuss matters pertaining to the evaluation of the Planning
Director over the past and current fiscal year and to discuss any pdates to fiscal year
goals. This session pertains to the Planning Director's evaluation where consideration of
matters affecting privacy will be involved. Further, to consult with legal counsel
regarding powers, duties, privileges and/or liabilities of the Planning Commission as it
relates to the evaluation of the Planning Director.
Mr. Dahilig: I will turn Item H over to the Deputy County Attorney.
Deputy Attorney Jodi Higuchi Sayegusa: We are on Item H.1. Pursuant to Hawaii
Revised Statutes Sections 92-5(a)(2 and 4), the purpose of this executive session is to discuss
matters pertaining to the evaluation of the Planning Director over the past and current fiscal year,
and to discuss any updates to fiscal year goals. This session pertains to the Planning Director's
evaluation where consideration of matters affecting privacy will be involved. Further, to consult
with legal counsel regarding powers, duties, privileges and/or liabilities of the Planning
Commission as it relates to the evaluation of the Planning Director.
Chair Keawe: Okay. We are going to go into executive session. This won't be long. I would
assume we can get this finished by quarter to ten.
Ms. Higuchi Sayegusa: I'm sorry. We just need a roll call vote on entering into executive
session.
Chair Keawe: Okay. Can we get a roll call vote to enter into executive session?
Ms. Higuchi Sayegusa: Commissioner Ahuna.
Ms. Ahuna: Aye.
Ms. Higuchi Sayegusa: Commissioner Lord.
Mr. Lord: Aye.
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Ms. Higuchi Sayegusa: Commissioner Streufert.
Ms. Nog_ami Streufert: Aye.
Ms. Higuchi Sayegusa: Commissioner Mahoney.
Mr. Mahoney: Aye.
Ms. Higuchi Sayegusa: Commissioner Apisa.
Ms. Apisa: Aye.
Ms. Higuchi Sayegusa: Commissioner Ho.
Mr. Ho: Aye.
Ms. Higuchi Sayegusa: Asa: And Chair Keawe.
Chair Keawe: Aye.
Ms. Higuchi hi Sayegusa: Unanimous, 7:0. Thank you.
Chair Keawe: Alright. So we will enter into executive session and we hope to be out in 20
minutes. Don't go far. Thank you.
The Commission entered into Executive Session at 9:25 a.m.
The Commission reconvened in Open Session at 9:55 a.m.
Chair Keawe: We will call the meeting back to order.
Mr. Dahilig: Thank you, Mr. Chair.
NEW BUSINESS
Special Management Area Use Permit SMA(U)-2018-4 to construct a single-family
residence on a parcel situated along the eastern side of Pane Road in Po`ipu, approx. 250
ft. north of its intersection with Hoone Road, further identified as Tax Map Key 28-
018:004, and containing a land area of 12,404 sq. ft. = Lau Family Trust.
Mr. Dahilig: We are on the amended agenda; action on Item F.2.a. This is Special Management
Area Use Permit SMA(U)-2018-4 at TMK: 2-8-018 Parcel 004 and the applicant is the Lau
Family Trust.
Mr. Chair, Jody will be providing the report on behalf of the Department.
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Chair Keawe: Go ahead, Jody.
Staff Planner Jody Galinato: Good morning, Mr. Chair and members of the Commission.
Ms. Galinato read the Project Data, Project Description and Use, Additional Findings,
and Preliminary Evaluation sections of the Director's Report for the record (on file with
the Planning Department).
Ms. Galinato: I passed out Supplement No. 1 to you this morning for the record. The applicant
did consult with a local cultural practitioner.
Ms. Galinato continued reading the Director's Report for the record, including the
Preliminary Conclusion section.
Ms. Galinato: I will hold off for the Preliminary Recommendation after the applicant speaks.
Chair Keawe: Thank you. Any questions for Jody from the Commissioners? Mr. Ho.
Ms. Ahuna: Is the applicant here?
Chair Keawe: Yes. Let's get the questions from the Commissioners first. Mr. Ho.
Mr. Ho: Jody, this SMA permit is for the ADU?
Ms. Galinato: Yes. In the Special Management Area, the first single-family residence could be
considered exempt if it is less than 7,500 square feet in size. What triggered this permit was the
construction of the second residence on the same lot.
Mr. Ho: If it is less than—
Ms. Galinato: If the first residence was greater than 7,500 square feet, that would have triggered
a Use Permit, but if the proposed residence is less than 7,500 square feet and the first residence
on the lot, it is exempt in the SMA rules. We already issued the permit for the first residence, so
what triggered this was when they wanted to build the second one.
Mr. Ho: Does the permit stay with the house or the land?
Ms. Galinato: The permits stay with the property.
Mr. Ho: Stays with the property?
Ms. Galinato: Yes.
Ms. Apisa: When was the first one built?
Ms. Galinato: The first one is under construction right now.
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Chair Keawe: So, Jody, the first house is currently under construction—
Ms. Galinato: Yes.
Chair Keawe: —and this is basically the application for the second house.
Ms. Galinato: Yes.
Chair Keawe: What's the ... no, maybe I will ask the applicant.
Ms. Galinato: Okay.
Chair Keawe: About the timing. Any other questions? Kanoe, do you have anything?
Ms. Ahuna: No. Yes, for the applicant.
Chair Keawe: Okay. Commissioner Lord.
Mr. Lord: Yes. One of the testifiers earlier had mentioned that he was concerned about it going
from a 2 -bedroom to a 3 -bedroom. But in reading the application, it is for a 3 -bedroom, right?
Ms. Galinato: It is for a 3 -bedroom. We would not allow it to be converted into two (2) units as
the person that spoke (indicated).
Mr. Lord: Okay.
Ms. Galinato: If they did do that, then we would go back and revisit this.
Mr. Lord: Can you just tell me what the County's recourse or practice is in that regard of
ensuring the compliance with conditions?
Ms. Galinato: Well, if they didn't build the house as the plans are now, if we found out that they
put a lockout unit in it, we could go out and do an inspection and verify that. Then we would go
through the process of revoking this permit and there could be fines.
Mr. Lord: So that could happen even after the fact?
Ms. Galinato: Yes.
Mr. Lord: Thank you.
Chair Keawe: Any other questions? Commissioner Streufert.
Ms. Nogami Streufert: The concerns that Commissioner Lord had about the dividing up the
second unit, the ADU, does that also hold for the original residence?
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Ms. Galinato: It holds for any residence on the island.
Ms. Nogami Streufert: Great. Thank you.
Chair Keawe: Okay. Commissioner Ho.
Mr. Ho: Jody, what was the total square footage of both and the improvements?
Ms. Galinato: The first residence was approximately 2,600 square feet, including the garage and
the lanais, and then the second one is 3,474 square feet, which includes the garage and the lanais.
Mr. Ho: What is 50% coverage?
Ms. Galinato: They are at 47.6(%) where 50% is allowed.
Chair Keawe: Any other questions for the planner? Donna, nothing? Okay. Can we hear from
the applicant? Come up and introduce yourself, please.
Mr. Avery Youn: Good morning, Commissioners. My name is Avery Youn. I am an architect
and I am the authorized agent for the Murata Family. I have been working with this family for
about 20-25 years. They were formally with Kaua'i Builders and now the sons of one of the
partners in Kaua'i Builders is continuing as a general contractor. Can I pass out some
information first?
Chair Keawe: Have Jody do it. Go ahead, Avery.
Mr. Youn: I just have a short presentation, but before I begin, I wanted to explain these exhibits
that I am passing out to you. The importance of these exhibits — what I did was I took, the first
one you will see, an aerial photo and the reason for the aerial photo is to show that the
neighborhood is still residential in character compared to the R-10 district next to it, which is
denser; it is on the right side of the picture. I also wanted to point out from this aerial
photograph that the majority of these lots already have two (2) houses on it. The second page is
a photo location legend showing... there are twenty (20) pictures in here. I took a picture of each
house so you can relate to see what this neighborhood looks like. All the pictures from 1 to 12
are the buildings on the right, and you will see pictures 2 to 9 are of the project site itself. All the
pictures on the left, which is 13 to 20, 1 believe, shows all the houses on the left side of Kuai
Road. I also wanted to point out to you, on the second to the last page, there is a picture in there;
a condensed version of HomeAway, VRBO, and Airbnb. The reason I included this is to show
that the majority of all the residences along Kuai Road and also Pane Road — Kuai Road is to the
west of this — the majority of these houses are all vacation rentals already, which is all legal
because they are in the Visitor Destination Area. I wanted you to look at pictures 5 through S.
Picture No. 5 is where this proposed ADU is going to be. It is the back of where the existing
structure is being built. No. 6 is the property next to it. I believe the gentleman that spoke
earlier ... I believe that is his residence and it is immediately north of where this house is going to
be. Picture No. 7 shows the view towards Brennecke's Beach. Unfortunately, that is the view
that that person has now and unfortunately, this house is going to be built in front of it. Picture
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No. 8 is a view towards the rear, which is the Po`ipu Kai Resort. I just took pictures of the rest
and if you look at the legend, you can see where each house is. The reason for this is to show
that everything is still residential in character; appropriate for an R-4 density.
The Lau Family has owned this property for at least sixty (60) years, so they are developing it
with two (2) houses. One, I believe, is probably for vacation rental purposes. The other, they
want to keep for family use, but they are not leaving out the option in the future to rent it out on
occasion as a vacation rental also. I just wanted to make sure you understood that.
What I am going to present to you is basically the legal requirements, and the reasons that we are
here today is because this is the second house on the lot, it is in the SMA, and it exceeds
$500,000 in valuation. I believe what we estimated the construction cost to be is approximately
$650,000. I would just like to let you know that the proposal meets all of the ADU requirements.
We did do the facilities clearance form and it has been approved. The plans have progressed to
the point whereby it also meets all zoning and all building code requirements. It is in process for
a building permit, but we have to go through this stage first before we can get to that point. We
have made sure that both residences comply with the density. We have adjusted the rear setback,
the side setback so that it meets all of the requirements of today's ordinances. We made sure that
lot coverage, heights, parking, separation between buildings are all in compliance. We also
further met the notifications for the SMA requirements. We notified 100% of all the lots instead
of the required 75%, I believe. As far as SMA concerns, the flood zone, although only a portion
of the project is in the AE zone — it is the bottom southwest corner — the residences themselves
are not. We have elevated both floors to be above the flood elevation. I believe the finished
floor elevation is about 15 feet MSL whereby the flood elevation is, I believe, 12 (feet) in that
area. We have a letter from Malama Keloa stating that this area has not been used for historic
cultural events or activities and that there is no known historic sites. Because the first house is
under construction ... most of it is lava, so there was no evidence of any kind of burial or artifacts
or any kind of archaeological remains. Relative to Brennecke's Beach and Po`ipu Beach Park, I
believe if there is any kind of impact to be generated from these two (2) houses, it will probably
be maybe two, three, four, or five more people at the beach park, which, to me, should be a very
minimal impact, if any. Relative to some other SMA concerns, I know view is an issue here as
testified by the neighbor. However, reading the SMA rules closely, the only relationship I see to
views is that it has to protect the view to the ocean from the nearest State highway, which is not
applicable in this case. Because of the location of this project and the existing open space use of
the Po`ipu green belt, which is part of the Po`ipu Kai Resort, this property will have an
unobstructed view towards Brennecke's Beach. Unfortunately, as I said earlier, it will affect the
views of the two (2) residences on the property to the north. By unfortunate, I mean that this
project does meet all the laws, ordinances, rules, regulations of the State and County, and we
have met all the legal requirements. Hopefully the space between the buildings, which is 25 feet,
and the open space on the Po`ipu Kai Resort side will provide enough view corridors; not as
much as he wants, but at least there will be something rather than a complete, total blackout of
the ocean views.
Other than that, are there any questions? Relatives of the applicant are here in case you have any
questions for them, too. Should you have any questions?
16
Chair Keawe: Any questions, Commissioners, for the applicant?
Ms. Ahuna: So the lot was in the family for sixty (60) years?
Mr. Youn: That is what is represented. I believe she was the original owner; Mrs. Lau.
Ms. Ahuna: Okay. And one of the homes will be left for the `ohana?
Mr. Youn: As of this, that is what I have been told by the family; that they want to use one of it
for their own use and the other one was supposed to be a Transient Vacation Rental.
Chair Keawe: Avery, I just had a question about the Kapa`akai, which is the native rights, but I
think you answered that. We received a letter this morning from Ted Blake mentioning what
was there with regard to value, cultural, historical, and natural resources.
Mr. Youn: I can expand on that a little more. One of the houses next door is owned by a
contractor and that contractor, a few years ago without the owner's knowledge, cleared the
property — sort of leveled it and filled it — and used it as a construction base yard for a few years.
So what it did was, I guess for lack of a better word, destroyed or covered up any evidence of
any kind of artifacts or anything. But during construction of this house, nothing has been found
so far and it is all lava rock. In doing the septic system, it was very expensive because it had to
be chipped out in order to create the septic field.
Chair Keawe: Okay. Any other questions? Commissioner Lord.
Mr. Lord: Yes. Avery, the septic system, will the two (2) houses share one? Or will it be
separate?
Mr. Youn: The two (2) houses, yes, have to share one because it is only 12,000 square feet and
we are allowed only one per 10,000 (square feet), 5 -bedroom limitation. The house under
construction is two (2) bedrooms and the one in the back will be three. I know he also
mentioned about a kitchen upstairs, but there was no kitchen; it was only a bar sink. It is not
designed for lockouts. You have to go in through the front door on the bottom level in order to
get to the top level and there is no outside stairs to get to the top level, so it is going to be very,
very difficult to rent it out as a separate vacation rental unit.
Mr. Lord: I don't know if you know the answer to this, but in the future, could the parcel be
subdivided?
Mr. Youn: Subdivision, probably not. CPR, yes, because there is a parcel across the street that
has been CPR'd and there are two (2) houses on each of those CPR units, and the parcel next
door has been CPR'd with two (2) houses on that parcel. So we know it can be CPR'd, but
subdivision, I don't think it would be able to meet the minimum lot size requirements.
Mr. Lord: Would a CPR action potentially increase the density?
17
Mr. Youn: No, it cannot. You would have to change the zoning for that.
Mr. Lord: Okay, thank you.
Chair Keawe: Just to recap, Avery, the CPR could not affect the density without a zoning
change.
Mr. Youn: The only thing the CPR can do is separate ownership of the two (2) houses.
Chair Keawe: Right. Jody, one last question with regard to enforcement. We had testimony
from a neighbor, so that would be one of the remedies to allay a concern about having an illegal
rental or whatever, and usually the neighbors are pretty good about letting people know what is
going on.
Ms. Galinato: Yes. If we got a complaint, we would act on it and enforce.
Chair Keawe: Okay. Mr. Ho.
Mr. Ho: Jody, doesn't an SMA trigger an Environmental Impact Statement?
Ms. Galinato: Not necessarily; not in this situation. It didn't trigger the 343.
Chair Keawe: Okay. Any other questions, Commissioners? No? Thank you.
Mr. Youn: Thank you very much.
Chair Keawe: Alright. I guess we've heard from the applicant and we've heard from the
planner. Jody, can you go over the preliminary recommendation?
Ms. Galinato: Yes. Based on the foregoing conclusion, it is recommended that the Special
Management Area Use Permit SMA(U)-2018-4 be approved with the following conditions. Do
you want me to read all ten?
Chair Keawe: Can you just summarize?
Ms. Galinato: Yes. Condition No. 1 would cover your concerns about the project being built as
proposed today in the application and that any changes would have to go through the
Department. No. 2 would require them to submit a color scheme and landscaping plan that
would be composed of native species that we recommended. No. 3 is relative to lighting and the
endangered species. No. 4 is for the L.E.E.D., the energy efficiency requirements that we would
like to see in the construction. No. 5 states that the applicant shall resolve and comply with all
the standards and requirements set forth by all the agencies. No. 6 would be relative to some
concerns regarding any archaeological or historical resources that would be discovered during
ground disturbing; that they have to contact State Historic Preservation Division. No. 7 — that
they use the Best Management Practices. No. 8 — that they obtain the necessary building permit
and commence construction within one (1) year of the date of approval of the permit and
V
complete construction within two (2) years of the date of the approval of the building permit.
No. 9 — the applicant is advised that prior to construction and/or use, additional government
agency conditions may be imposed and it is their responsibility to resolve those conditions. And
No. 10 — that the Planning Commission reserves the right to add or delete conditions of approval
in order to address and mitigate unforeseen impacts this project may cause, or revoke the permits
through the proper procedures should the conditions of approval be violated or adverse impacts
be created that cannot be properly addressed. That is all, Mr. Chair.
Chair Keawe: Okay. Avery, can you come back up for a minute? Are you aware of all the
conditions—
Mr. Youn: Yes, I am.
Chair Keawe: —on the permit?
Mr. Youn: The conditions are fine.
Chair Keawe: Your client accepts the conditions?
Mr. Youn: Yes. We already submitted a landscape plan. It is on the last page of the exhibits I
sent you.
Chair Keawe: Okay. Any further questions? No? Are we ready to make a decision?
Mr. Mahoney: Chair, I will move to approve SMA(U)-2018-4.
Ms. Apisa: Second.
Chair Keawe: It has been moved and seconded to approve this particular permit. All those in
favor? (Unanimous voice vote) Any opposed? (None) Motion carried unanimously; 7:0.
Thank you.
Mr. Dahilig. Thank you, Mr. Chair.
GENERAL BUSINESS MATTERS
In the matter of Remand from the Hawaii Supreme Court for Amended Decision and
Order based upon Additional Evidence for CC -2015-20, Class IV Zoning Permit Z -IV -
2007 -1, Use Permit U-2007-1, Special Permit SP -2007-01, Tax Map Key: (4) 2-8-002:
por. 005 =Kana `i Springs, Inc.
Mr. Dahilig: We go back to the Agenda Item I.1., the General Business Matters. This is in the
matter of remand from the Hawaii Supreme Court for amended Decision and Order based on
additional evidence for Contested Case Hearing No. CC -2015-20, Class IV Zoning Permit Z -IV -
2007 -1, Use Permit U-2007-1, Special Permit SP -2007-1 at Tax Map Key: (4) 2-8-002 Portion of
19
005. The applicant under those permits was Kauai Springs, Inc. There is a Hearing's Officer
Report and Recommendation of Contested Case Hearing; Certificate of Service.
Mr. Chair, I am going to turn this over to the Deputy County Attorney for further advice.
Chair Keawe: Could you introduce yourself, please?
Deputy County Attorney Adam Roversi: Yes, Mr. Chair. Adam Roversi, Deputy County
Attorney. I am representing the Planning Department in this matter in the Contested Case.
Chair Keawe: Go ahead.
Mr. Roversi: Today, the Commission is receiving the Hearings Officer's report. I direct you to
page 49. This Hearings Officer's recommendations leave several things for the Commission to
still make decisions on that are outside of his recommendations. Procedurally—
Chair Keawe: Could you speak up a little, Adam?
Mr. Roversi: Sure. Because the Hearings Officer's recommendation is leaving some additional
factual detenninations for the Commission to make decisions on, essentially from a procedural
point of view, this needs to be rescheduled for an additional hearing before the Commission as
opposed to taking any action on this report today. The request from the Planning Commission
[sic], as well as the applicant who couldn't be here today, is simply to defer this for a further
hearing to be reset after the New Year. I attempted to communicate with the applicant and his
attorney to decide on an exact date so we could give that to you today, and I believe he is out of
town, so we haven't been able to nail down a requested, specific date for a further hearing. So
we would request that we be able to communicate with the Commission's staff regarding
resetting this on the agenda for a continued hearing.
Chair Keawe: So we are speaking of the applicant and his attorney requesting a deferral.
Mr. Roversi: Correct. They were there not prepared to address the additional factual evidence
that the Hearings Officer is recommending that the Commission consider, so they were
requesting a date after the New Year. The Planning Department has no objection to that request.
Chair Keawe: Okay. Any objection from the Planning Department?
Ms. Higuchi Sayegusa: I'm sorry. Just to clarify, the request and the stipulation by the Planning
Department and also the Petitioner, or Kauai Springs in this case, is to reopen the hearing, not
only for findings related to Native Hawaiian and traditional and customary practices, but for the
rest of the recommendations?
Mr. Roversi: The hearing, from Planning's perspective, would have to do a couple of things.
The bulk of the Hearings Officer's report is with regard to the consideration of the Commission's
public trust responsibilities, which were the subject of the Supreme Court case involving this
matter. So it was remanded from the Supreme Court, specifically, to address these public trust
20
issues in the framework that the Supreme Court set out. The bulk of the Hearings Officer's
recommendations deal with that public trust analysis from the Supreme Court, setting out his
findings and recommendations to you. It will be up to the Commission to accept or reject the
Hearings Officer's recommendation with regard to the public trust. Separate, beginning on the
last several pages, the Hearings Officer has left undecided and no recommendations on several
factual matters that he considers necessary to resolve before making a final decision on granting
the requested permits, and those are outlined beginning on page 49. 1 can quickly attempt to
summarize them for you. To reiterate, the Hearings Officer himself is making no
recommendation one way or the other on these matters. He is leaving it for the Commission to
make a determination at a continued hearing. So we have that it remains to be determined that a
well modification permit took place or that a ... sorry, that a steel -mounted panel on the entrance
to the tunnel took place before May 30, 1989; no evidence was presented one way or the other
with regard to that and technically, if it had not taken place before that date, a well modification
permit would have been required from the Commission on Water Resources Management. So
that is a remaining fact issue for the Commission to determine. The intention of the applicant is
to be able to come back at this continued hearing with some sort of information on that issue.
Further, in the original application, there was a provision for possible necessary changes to
Maluhia Road. During this Contested Case hearing, the permit has been amended to reduce the
proposed use, so there is an item regarding the need, or lack thereof, of any actual changes to
Maluhia Road. Evidence and discussion would (inaudible) be presented by the Petitioner
regarding that matter. There are some outstanding Department of Health requirements that may
or may not still be applicable to the proposed use. There was, as a result of the Contested Case
proceedings, an agreement by the Petitioner to install a flow meter, so they need to come back
and demonstrate whether they have or haven't done that. There is discussion about a reasonable
attempt to have the chlorination of the water in Grove Farm's tank end via some sort of an
agreement with Knudsen and Grove Farm; there has been no evidence one way or the other
presented about that. I believe those are the only factual issues. Finally, on the very last page —
page 52 — he is recommending that the Planning Commission reopen the hearing in this
Contested Case and that the Petitioner affirmatively establish the exercise of Native Hawaiian
and traditional and customary rights are protected notwithstanding the proposed bottling
operation. So that is, again, another factual determination that the Hearings Officer is essentially
sending back to the Commission to make its own determination one way or the other.
Chair Keawe: Just an opinion, your opinion, isn't this unusual that ... I mean, this case started in
2007, I believe, the original—
Mr. Roversi: 2006.
Chair Keawe: 2006. Here we are ten (10) years later, it has gone all the way up to the Supreme
Court, and it has come back to the Planning Commission to make those determinations rather
than a circuit court to do those?
Mr. Roversi: Well, it has definitely had a long history through multiple court proceedings. A
brief summary — the Supreme Court decision sent the case back to the Planning Commission;
remanded the case to the Planning Commission.
21
Chair Keawe: Right.
Mr. Roversi: In a nutshell, the Planning Commission rejected the permits, the Supreme Court
affirmed the rejection of the permits and remanded this case to the Planning Commission to
better explain its rejection of the permits because their explanation hadn't satisfied the public
trust requirements and that is what the bulk of the Supreme Court case dealt with; clarifying
those public trust requirements that the Planning Commission had to carefully explain.
Following the remand, the then Planning Commission opted — instead of just rewriting its
decision and explaining — they opted to reopen the Contested Case hearing and receive additional
evidence; that hearing took place before the Hearings Officer. Kauai Springs was afforded the
opportunity to bring additional evidence and they amended their application during that process
to reduce the proposed use, and the evidence presented there is the basis of the Hearings
Officer's recommendations to you now, which is he is, in a nutshell, recommending a reversal of
the prior denial.
Chair Keawe: Right. Okay. One of the things I just wanted to mention was, you know, ten (10)
years ago, do you know how many Planning Commissions have turned over, individual
commissioners, during that time, and I think sometimes it is a little difficult to keep up with all of
the things that have gone on. We are charged now with trying to do the best we can to sift
through all of that information and come up with a decision that are primarily legal requirements.
It is just a concern that we've got volunteer commissioners who are asked to do something that
you would pay a very well-educated and astute attorney to make those kinds of decisions.
Anyway, that is just an opinion and I just thought it was unusual the way it came down.
Mr. Roversi: I think this case became more complicated than anyone ever expected that it would
from the original application for the Use Pen -nit.
Chair Keawe: Okay. Mr. Ho.
Mr. Ho: Can you lay some groundwork on what we are going to do here? Is this going to be a
permit application that we are going to rehear?
Mr. Roversi: In essence, it is a permit application, so you are considering the ... based upon the
Supreme Court's decision that has facets beyond just the typical SMA requirements that are set
out in the Planning Commission's rules. The Supreme Court has set out this framework of the
Planning Department's, the Commission's, the County's public trust obligations, especially with
dealing with water resources. So the Hearings Officer's recommendation to you generally deals
with those public trust legal requirements and it will be up to the Commission to review the
Hearings Officer's recommendation with feedback, both from myself representing the Planning
Department and from the applicant's attorney, as to the correctness or incorrectness of the
Hearings Officer's conclusions. And then separately from giving an up or down on the Hearings
Officer's recommendations, you have the additional factual determinations to snake per the
Hearings Officer, but it is, again, it is up to this Commission to even accept the Hearings
Officer's recommendations that those factual determinations need to be made in the first place,
or that they are appropriate.
22
Chair Keawe: Jodi.
Ms. Higuchi Sayegusa: If there are any other procedural questions, you can ask me. But if I am
understanding correctly, your position is that much of the recommendations are requests to
reopen a hearing to address additional factual findings. Some of these seem, to me, his
recommendation that could be incorporated into a permit condition, so I just want to make sure,
should you folks be considering sending it back to the Hearings Officer, that he has sufficient
direction on what he is supposed to do; what is the scope of his review. Ultimately you folks,
again, will have to decide whether you are going to accept, modify, or adopt the
recommendations of the Hearings Officer, and hearing a little bit of the history that Adam, on
behalf of the Department, has laid out. I just want to make sure that, as we go forward, you folks
are thinking about what exactly we are sending back, if that is what you are thinking of doing at
this point.
Chair Keawe: Mr. Ho.
Mr. Ho: Jodi, one more question. So our attention is going to be to those nine (9) points that
were made by the Supreme Court?
Ms. Higuchi Sayegusa: Again, as Adair mentioned, we got the direction from the Hawaii
Supreme Court to clarify the ruling of the denial and I think I was coming on at the time, to
represent the Commission at the time, but the thought was in order to do so, that had to be
flushed out and the Commission elected to send the clarification and reopen the Contested Case,
and that was dealt with the Hearings Officer. As a result of the reopening of the Contested Case
to accept additional findings related to public trust, he has also made some recommendation as to
considering the permit as a whole. So his recommendation has been to approve and he has a
series of nine (9) conditions or recommendations, additionally, for you folks to consider
alongside his recommendation of approval of the permit itself. I think the most open-ended was
Recommendation No. 9, which was very direct in recommending that the Commission reopen
the hearing related to establishing findings related to Native Hawaiian and traditional and
customary rights and practices.
Chair Keawe: So basically, the D&O basically says his recommendation is to approve the Use
Permit, Special Permit, and Class IV Zoning Permit provided and subject to these nine (9)
conditions. Adam, you are requesting that we defer this to next year?
Mr. Roversi: Yes, and myself and the applicant's attorney will communicate with Commission
staff regarding setting a specific date for the hearing, if the Commission is amenable to that.
Ms. Higuchi Sayegusa: I'm sorry. And deferring the decision on whether or not to ... is that what
you are asking for? Deferring the decision on whether to resend it back to the Hearings Officer
or are you requesting it be sent back to the Hearings Officer with instruction to—
Mr. Roversi: I am requesting it be set for hearing before the Planning Commission to consider
his recommendations, along with the nine (9) contingencies that he set out in his
recommendation.
23
Ms. Higuchi Sayegusa: Okay.
Chair Keawe: Okay. So you are just requesting a deferment in the hearing, and then at that time,
we can go through each of the nine (9) issues and determine what we are going to do with them,
or—
Mr. Roversi: In my mind, it would be principally the applicant's duty to discuss and present his
position on—
Chair Keawe: Yes, obviously, and that is why you want to defer the hearing because he is not
here.
Mr. Roversi: Correct.
Chair Keawe: Okay. Everybody understand? It is a pretty complex and long, drawn out issue,
but again, the thing that we need to remember is this has gone on for quite a while.
Commissioner Streufert.
Ms. Nogami Streufert: Could I ask a question?
Chair Keawe: Yes, absolutely.
Ms. Nogami Streufert: Some of the issues that you brought up are factual issues; either whatever
that wall was was built before "x" date or it was not, whether their flow meter was installed or
not. Those are very factual issues. Then there are the other issues of the public trust, which are
more legal and constitutional rather than a factual. Are all of these issues going to be presented
at the next hearing?
Mr. Roversi: Well, the public trust issues, which are certainly more involved and more
complicated, are all addressed in the body of the Hearings Officer's report prior to those nine (9)
conditions.
Ms. Nogami Streufert: Right.
Mr. Roversi: And, as you read through that, he is recommending that — in a nutshell — that they
have been met and recommending approval; that the public trust obligation has been satisfied as
set out by the Hawaii Supreme Court.
Ms. Nogami Streufert: Except for the Native Hawaiian—
Mr. Roversi: Correct.
Ms. Nogami Streufert: Since that is a large part of it and it is part of the public trust, it becomes
now... Has it been addressed or has it not? It is both legal, as well as factual, that it has been
done.
M1
Mr. Roversi: For sure that is a less cut and dry factual determination than the date that which the
wall was built.
Chair Keawe: I think Mr. Dahilig has a comment.
Mr. Dahilig: I just want to clarify for the Commission that when hearings are sent down to a
Hearings Officer, it is done with delegated authority. What you are seeing in the return from the
Hearings Officer is within the limits of that delegated authority. So what he may be alluding to
the Commission is that there are certain items that he did not feel he had authority from the
Commission to actually make a recommendation on. Just to clarify why it may be appearing a
bit disjointed in terms of the recommendations versus a whole recommendation is that when you
look at items like Paragraph No. 9, he may have felt that that was outside the bounds of his
delegated authority from the Commission to actually make an evidentiary detennination on. I
just want to clarify that Adam is the Department's attorney, so he is advocating on behalf of our
department that with what the Commission's choice — how to dispose of it — I think the advice
that is coming in from the Commission's attorney relates to, again, the ability to even make a
decision, absent some of the things that Mr. Kimura is pointing out to the Commission. So how
to fill in, I guess, the—
Chair Keawe: Blanks.
Mr. Dahilig: —the rest of the ... yes, exactly ... is your choice and I believe our attorney for the
Department is asking to flush out the rest of the evidentiary material in front of the Commission,
but I believe that what the attorney for your commission is telling you is that you also have
options to defer that to a Hearings Officer again and ask for another return. So I just wanted to
clarify that our request is to have it ... based on what Mr. Roversi is saying, he thinks that can be
handled in front of the Commission. But if the Commission feels that a Hearings Officer is more
appropriate, then that is within your discretion.
Mr. Roversi: Could I clarify one point?
Chair Keawe: Mr. Roversi, go ahead.
Mr. Roversi: I don't want to get too much into argument and right and wrong because the
applicant is not here to speak up and share, so I want to try to stay as procedural as I can as
opposed to making argument. I was simply trying to convey what the Hearings Officer has
presented to you. That is the Hearings Officer's recommendation that there be a continued
evidentiary hearing. It is not necessarily the Planning Department's recommendation one way or
the other.
Chair Keawe: Right.
Mr. Roversi: It is what the Hearings Officer, by the letter of his report—
Chair Keawe: Ultimately, it is the Planning Commission that will make the decision on all of
those nine (9) points.
25
Mr. Roversi: Correct.
Chair Keawe: Kanoe.
Ms. Ahuna: Shouldn't the applicant be responding to those nine (9) contingencies being
presented? That is kind of what I feel like Adam is saying. Right?
Ms. Higuchi Sayegusa: Right, yes. So again, I guess at this point, you folks have, procedurally,
a couple options. You could elect to direct the Hearings Officer to snake additional findings
related ... any factual determinations that you still would like him to make to help resolve the
public trust issues; also, the remaining open-end is any findings on the traditional and customary
Native Hawaiian practices and resources. Or, you folks can hear that and defer this whole
matter, which is consideration of the report and recommendation of the Hearings Officer, to the
next meeting, which is in January. So you folks can consider this, snake additional factual
findings related to public trust; you can snake findings on the traditional and customary practices;
and as a whole, whether or not you want to adopt or modify some of the recommendations made
by the Hearings Officer; or you could send it back to the Hearings Officer to make those
findings, report back, and then, at that time, you consider the report and recommendation at that
time.
Chair Keawe: I think from the standpoint of what our responsibilities are, we now have the
document from the Hearings Officer. It is quite complete and it addresses pretty much what he
was engaged to do, and we have several options based on his recommendations. One of them,
like Jodi said, is we will take the responsibility of opening a hearing to determine, you know,
establishing Hawaiian customs and practices. Or, we could send it back to him and he can do it.
If you read into the body of what he said, he has done several hearings on this particular issue for
quite a while in these last years or so. My point was, you know, we could do it or we can send it
back to an attorney or Hearings Officer who is much more equipped to handle that, and then,
again, still make a recommendation to us because he has reopened up that particular ... we could
send it back as an assignment; you know, we would like you to handle the evidentiary portion of
this Native Hawaiian Kapa`akai Rights, and then when you are done, give us back your
recommendation. (Inaudible) like Adam mentioned, a lot of these things that are in here are
pretty much cut and dry; here is how we are going to monitor the flow, yes, this was done before
May of .1989 or after May of 1989, that type of thing that he is recommending that the
Commission consider, subject to his approval. I think, at this point, what we are looking at is
since the applicant isn't here and the applicant, as Commissioner Ahuna said, needs to be here to
be able to speak to the issue, our choice at this time or decision is to go ahead and defer this
particular issue until next year sometime.
Mike, what about the schedule?
Mr. Dahilig: Well, not to surprise everybody with an early Christmas gift, but today's calendar
is pretty much the rest of the docket for the rest of the year. If you would like to—
Chair Keawe: You promised this was the last meeting for the year. (Laughter in background)
0
Mr. Dahilig: If you would like to try to schedule just this one (1) item, we do have two (2)
meeting dates that are still left for the rest of the year. However, what we are doing is we are
calendaring everything to the first meeting in January. So if that is the date you would like to
defer the item to, we could certainly accommodate that. And again, just to clarify, it is to defer
the matter rather than deferring to a hearing, right? I just want to clarify that. So that would be
January 9 or January 23, 2018.
Chair Keawe: Okay.
Ms. Nogami Streufert: Could I ask for a clarification?
Chair Keawe: Commissioner Streufert.
Ms. Nogami Streufert: If we defer this to another date, that does not necessarily mean that we
are reopening a hearing, is that correct?
Mr. Dahilig. That is why the language needs to be very clear; that if what you are expecting is
just to decide whether to refer it or to hear, that decision needs to be distinguished from
scheduling a hearing on the matter, so that's why just be very intentional on the wording on what
the Commission would like to do.
Chair Keawe: Okay. Donna.
Ms. Apisa: What is the agenda looking like in January?
Mr. Dahilig: Well, if you notice, we haven't even circulated on deck sheets for January, so I
think there are going to be a pretty lean few months coming up. We do have a number of, kind
of, policy things that are coming up. Namely, there is a shoreline setback bill that came down
from the Council, we are going to have — depending what the Commission does today on the
ARU Bill — maybe some additional work on the ARU Bill going into January, and then probably
some more rule amendments that may be coming down the pipeline, so it will be more
administrative work coming into the new year so we are not too burdened with heavy
applications.
Chair Keawe: Okay. I guess it is a question of, do we want to enjoy our Thanksgiving and
Christmas and move it to January? There are two (2) dates in January.
Ms. Apisa: Well, it has been going on for eleven (11) years.
Chair Keawe: Yes.
Ms. Apisa: What's another month?
Chair Keawe: Thank you.
27
Ms. Higuchi Sam usa: Just so that we are all clear, so at this point, you folks are considering
whether just to defer—
Ms. Apisa: The matter.
Ms. Higuchi Saye usa: Everything. So that includes whether or not to reopen ... okay, thank you
very much.
Chair Keawe: Okay. Mr. Mahoney.
Mr. Mahoney: I think we should move on and make a motion to defer this matter. I would hope
we could do it the second week in—
Chair Keawe: The second meeting in January?
Mr. Mahoney: Yes.
Chair Keawe: Okay. Do you want to make a motion to that effect?
Mr. Mahoney: Okay, I would like to—
Chair Keawe: Do you have something to add to this particular issue?
Ms. Tessie Kinnaman: Yes, I do.
Chair Keawe: Okay. Do you want to come up? You have three (3) minutes. We normally
don't do this, but go ahead. Your name, please.
Ms. Kinnaman: For the record, Tessie Kinnaman. Good morning, Chair Keawe and
Commission Members. In 2006, myself and Cheryl Lovell-Obatake — the late Cheryl Obatake —
we brought this forth to the Commission back then. We still — although she has passed, I don't
think she has changed her mind — we still ask that you deny this application because the source
of the water is not from the pipes. The source is a public resource; it is ours. I have a copy of
this Decision and Order here, so I might take more than three (3) minutes.
Chair Keawe: No, you have three (3) minutes.
Ms. Kinnaman: I know. Anyway, No. 27, page 47, the Petitioner does not have a vested right to
the water from the K61oa Water System for its bottling operation because Grove Fann may cease
operation of that water system at any time. Also, page 19, the K61oa Water System is owned by
Knudsen Trust and operated by Grove Farm. The Petitioner is a rental of the K61oa Water
System based on the amount of gallons. Also, although the Supreme Court did not require the
Petitioner to obtain a fon-nal declaratory ruling from the PUC that the owner and operator —
Kahili Mountain Water System, Knudsen Trust, Grove Farm, respectively — are not regulated by
the PUC or subject to its jurisdiction, before the Planning Commission can issue three (3) zoning
permits to Kauai Springs. PUC Order at 12. And also on page 49, No. 34, Department of
Health no longer has jurisdiction over the K61oa Water System as a regulated public water
system because it was inactivated as of March 31, 2017.
If I may read from "Ola I Ka Wai"...
Mr. Dahilig: Three (3) minutes, Mr. Chair.
Chair Keawe: Ma'am, excuse me.
Ms. Kinnaman: Yes.
Chair Keawe: You will have another opportunity to do exactly what you are doing now because
we are about ready to vote to defer this whole issue. This will give you another opportunity to
do that.
Ms. Kinnaman: I understand that, but I may not be able to come to the next hearing.
Chair Keawe: What was that?
Ms. Kinnaman: I, myself, may not be able to come to the next hearing.
Chair Keawe: Well, I'm sorry, but—
Ms. Kinnaman: Yes, I'm sorry, too.
Chair Keawe: —we got the gist of your testimony. Thank you very much.
Ms. Kinnaman: Thank you.
Chair Keawe: Okay. Are we ready to vote? Did we have a motion on the floor?
Ms. Hi cug hi Sam sa: We had the motion and a second to defer to the second meeting in
January.
Chair Keawe: Okay. All those in favor? (Unanimous voice vote) Any opposed? (None)
Thank you. Motion carried. Thank you, Mr. Roversi.
Mr. Roversi: Thank you.
Mr. Dahilig: Thank you, Mr. Chair. We are now on Item L.1. This is Class IV Zoning Permit
Z -IV -2017-6 and Use [sic] Permit V-2017-2. This is for Brian Lansing and David Camp at
TMK (4) 5-1-005 Parcel 132.
Ms. Higuchi Sayegusa: I'm sorry. I was just corrected. We didn't get a second in the last ... in
the Kauai Springs.
29
Ms. Apisa: I seconded.
Mr. Mahoney: Did you?
Ms. Higuchi Sayegusa: Did you second?
Mr. Mahoney: I was making the motion—
Ms. Higuchi Sayegusa: Okay, we will clarify our records.
Mr. Mahoney: I started the motion and then we got interrupted.
Ms. Higuchi Sayegusa: Okay.
Mr. Mahoney: So, just for clarification—
Chair Keawe: Let's do it again.
Mr. Mahoney: I move to defer to the second meeting in January.
Chair Keawe: 2018.
Mr. Mahoney: 2018.
Chair Keawe: Do I have a second?
Ms.Apisa: Second.
Chair Keawe: Alright. Moved by Commissioner Mahoney and seconded by Commissioner
Apisa. Any questions? Any discussion on this motion? All those in favor? (Unanimous voice
vote) Any opposed? (None) Thank you. Motion carried 7:0.
UNFINISHED BUSINESS (For Action)
Class IV Zoning Permit Z -IV -2017-6 and Variance Permit V-2017-2 to deviate from the
minimum lot size requirement within the Agriculture (A) zoning district, pursuant to
Section 8-8-3(b) of the Kauai County Code 1987) as amended, involving a parcel
situated on the makai side of Kuhi6 Highway in Kilauea, approx. 600 ft. north of the
Waiakalua Street/Kuhi6 Highway intersection and further identified as Tax Map Kew
5-1-005:132, and affecting a total area of 27,450 sq. ft. = Brian Lansing & David Camp.
[Director's Report (DR) received 3/28/17, DR Sup 1 received, hearing deferred 4/11/17,
DR Sup 2 & 3 received, hearing deferred 6/27/17.1
Mr. Dahilig: Mr. Chair, we are back to Item L.1. and Chance will be providing the report on
behalf of the Department.
30
Chair Keawe: Okay. Mr. Bukoski.
Staff Planner Chance Bukoski: Good afternoon, Chair. We received Supplemental No. 4, which
I provided to you guys; correspondence from the Department of Transportation on their position
on the matter. Would you like me to summarize the ... I mean, to—
Chair Keawe: Yes, just summarize. I think you are talking about the letter that you recently got
from Larry Dill.
Mr. Bukoski: Correct.
Chair Keawe: Alright.
Mr. Bukoski read the letter dated November 2, 2017 from Larry Dill for the record (on
file with the Planning Department).
Mr. Bukoski: Would you like me to hold off on my recommendation?
Chair Keawe: Just give us a summary. Some of us kind of forgot about ... this involved? What it
was and—
Mr. Bukoski: The application came in, I believe—
Mr. Dahili&. March.
Mr. Bukoski: March. It was for a variance for deviation of the lot requirements, such as lot
width, and then also lot length requirement as well. Time has passed since then. We've had
three (3) deferrals, I believe.
Chair Keawe: Right.
Mr. Bukoski: The prior date, which was April 11th, we still had a motion [sic] to deny it;
however, the applicant requested for another two-month deferral to have negotiations with the
Department of Transportation in which we are here now.
Chair Keawe: Just to recap — remember, this is the lot that is out going to Kilauea and it is kind
of going around a curve. It was real narrow and it was kind of a remnant piece of prior
Department of Highways' realignment of the road. He had indicated at one point that I think it
was back in 2008, if I am not mistaken, that the Department of Transportation was willing to sell
it, but he had to produce results within a year, I believe.
Mr. Bukoski: Correct.
Chair Keawe: And nothing came through and then we kept getting, you know, let me go talk to
him again and get a deferral. Is anyone here for the applicant?
31
Ms. Maren Arismendez-Herrera: Good morning. My name is Maren Arismendez-Herrera from
Esaki Surveying; here representing the owners.
Chair Keawe: Okay, go ahead.
Ms. Arismendez-Herrera: There was one (1) update as of yesterday afternoon. I did send a
communication to the Planning Department. I am not sure if they received it. It was later in the
day.
Chair Keawe: Excuse me. Who is "they"? You said "they" sent something to the Planning
Department.
Ms. Arismendez-Herrera: I sent, sorry. Well, I received communication from the owners'
lawyers who have been in—
Chair Keawe: From the owners' lawyers, okay.
Ms. Arismendez-Herrera: Yes. The owners' lawyers have been in contact with the Department
of Transportation (DOT).
Chair Keawe: Okay.
Ms. Arismendez-Herrera: I provided them, earlier in the day yesterday, Supplemental No. 4,
which is the letter from DOT that Mr. Bukoski just read.
Chair Keawe: Right.
Ms. Arismendez-Herrera: They have talked to DOT and by email, Larry Dill has confirmed that
they are willing to enter into negotiations but they are putting a 180( -day) deadline on
negotiations. So this is the email I forwarded yesterday to the Planning Department a little later
in the day; I didn't receive it earlier.
Chair Keawe: When did you get it?
Ms. Arismendez-Herrera: Yesterday at 4:00.
Chair Keawe: Okay. It's pretty difficult. I mean, I guess our concern is we've given a lot of
leeway on this particular item.
Ms. Arismendez-Herrera: Right.
Chair Keawe: We've deferred it two (2) or three (3) times now and each time, you know, under
the guise of okay, fine, but we will get it done. And to come in at the last minute — 4 o'clock in
the afternoon and our meeting starts at 9 o'clock in the morning — and to have it go through the
whole process, I think is a little tough for us to accept. Do you have a copy of that?
Kia
Ms. Arismendez-Herrera: I have a copy of the email and if the—
Chair Keawe: I just want to know if you have a copy. Mr. Bukoski, did you receive that email?
Mr. Bukoski: I don't believe we received that email yet.
Chair Keawe: You haven't received it yet?
Mr. Bukoski: No. If anything, I would have to check my email.
Chair Keawe: Who did you send it to?
Ms. Arismendez-Herrera: Chance Bukoski.
Chair Keawe: Okay. And it was at 4 o'clock in the afternoon?
Arismendez-Herrera: Yes.
Chair Keawe: Well, anyway, Commissioners, we need to make a decision on this. What did the
email say? Just read the part that you think we should hear.
Ms. Arismendez-Herrera: It is brief, I can read it all. From Michelle, who is one of the lawyers
for the owners, Larry—
Chair Keawe: This is from the applicants' attorney.
Ms. Arismendez-Herrera: Right. Applicants' attorney to—
Chair Keawe: And she is sending this letter to who?
Ms. Arismendez-Herrera: To Larry Dill.
Chair Keawe: To Larry Dill, okay.
Ms. Arismendez-Herrera: "Larry, thank you very much for meeting with me. This email is to
confirm the Department of Transportation is open to negotiating the sale of remnant parcel 2 to
Brian Lansing contingent upon a suitable replacement property being found. The DOT is putting
a 180 -day deadline on negotiations. As we discussed, we will make this representation to the
Planning Department at the hearing tomorrow morning. Please confirm." To which Larry Dill
replied, "Thanks Michelle. Confirmed."
Chair Keawe: So we don't have any record of that? No?
Mr. Bukoski: No, I have to go check my email.
33
Chair Keawe: Again, let me see if I understand it, this is the applicants' attorney, not the
Department of Transportation themselves; just the applicants' attorney saying that they sent ... or
they had a discussion with the Department of Transportation.
Ms. Arismendez-Herrera: Right. They had discussed it in person or by phone – it wasn't in
writing – so this was a way to get the confirmation from DOT in writing.
Chair Keawe: Okay, so my question goes back to the original intent, why couldn't you get it
done sooner?
Ms. Arismendez-Herrera: I wasn't involved in those negotiations, so–
Chair Keawe: That's fine, but again, it is a question of—we grant extensions for the expressed
purpose of giving you an opportunity to get it done and we've done it twice now, three (3) times.
Mr. Dahilig: Three (3) times.
Ms. Arismendez-Herrera: They had been previously in contact with DOT, but weren't able to
make any leeway until yesterday.
Chair Keawe: Mr. Dahilig, your opinion, please.
Mr. Dahilig: Mr. Chair, what I would recommend is, maybe, going to the next agenda item so
we can resolve this issue of the late email and check Chance's inbox. Typically, first thing in the
morning on Commission mornings, my guys don't even have time to even check their email
before they hit the Commission floor and Chance starts at 8:30. I would suggest, though, even if
we have that email, I probably would not be inclined from a position of recommending to the
Commission that we move forward with the denial of it just because it has been dragged out for
close to nine (9) months and by the time the deferral comes around to January, this has been a
10 -month application at this point. Sothis is, I know, an inconvenience and actually a very ... I
would suggest somewhat unprofessional manner that this is being handled, so I would like just a
moment to clarify for the record whether we did or did not receive this email and at that point,
we can turn to the Commission. As to not waste time, maybe just move on to the ARU Bill for
your discussion and we can come back to this.
Chair Keawe: Alright. Commissioners, Mike is suggesting we just go ahead and defer it until
later in today's agenda, if that is acceptable.
Mr. Dahilig: This one and the ARU Bill are the only two (2) items that are left on the agenda
besides the continuation of the Executive Session.
Chair Keawe: Alright. We will just defer and we will let you know if we actually got a copy of
that.
Ms. Arismendez-Herrera: Okay, thank you.
34
NEW BUSINESS (Continued)
Zoning Amendment ZA-2018-2: A bill for an ordinance amending Chapter 8 Kauai
County Code 1987, as amended, introducing legislation that addresses "Additional Rental
Units." The proposal amends Section 8-1.5 of the KCC b adding the definition of
"Additional Rental Unit" and Chapter 8 of the KCC by adding a new article, entitled
"Additional Rental Units" = Kaua `i Countv Council.
Deputy Planning Director Kaaina Hull: The next agenda item, Chair, is going to be Agenda
Item...
Chair Keawe: County Council — 4.a.
Mr. Hull: Technically, it is the Baird Family Limited Partnership. You deferred the agency
hearing, but as far as ... it is still being left in Unfinished Business.
Chair Keawe: I thought we already deferred it to June 2018.
Mr. Hull: Oh, okay. You did that with the hearing. You did both the hearing and Unfinished
Business? Okay. My apologies.
The next agenda item is Zoning Amendment ZA-2018-2: A bill for an ordinance amending
Chapter 8, Kauai County Code 1987, as amended, introducing legislation that addresses
"Additional Rental Units". The proposal amends Section 8-1.5 of the Kauai County Code by
adding the definition of "Additional Rental Unit" and Chapter 8 of the Kauai County Code by
adding a new article entitled "Additional Rental Units"; proposed and introduced by the Kauai
County Council.
To give some background on the proposed amendment, about two (2) years ago, this body
reviewed an Additional Rental Unit Bill for the Lihu`e Community Planning Area. That
proposed bill was initiated much in part as one of many lines being cast in the water for the
County to deal with the affordable housing crisis, or just housing crisis overall, that the County
of Kauai, and the State of Hawaii as a whole, is dealing with. In looking at some of the
specific numbers, the Kauai General Plan Update Socioeconomic Analysis and Forecasts of
2014 states that in 2014, Kauai had a housing deficit of 1,400 units and a demand that is
projected to increase by approximately 9,000 units by 2035. The Housing Agency also provided
comments to the bill referencing their Hawaii Housing Planning Study, 2016, which states that
Kauai will need 5,287 residential units by 2025. Some of the discussion for the original ARU
Bill was looking at the fact that as far as actual housing projects being proposed here on Kauai,
in the past decade, there hasn't been a significant housing development proposed for this body to
review and ultimately get shovel -ready. We are seeing a few developments going online — in
particular, the Hanama`ulu case — but those were received well over a decade ago. As far as
actual new projects, the County of Kauai hasn't been seeing many. The ARU discussion
actually happened with the Housing Agency under the previous Housing Administrator Kamu
Cobb -Adams. He began a program of aggressively going after County properties and partnering
with developers to go after Federal tax credits to provide for the impetus and investment for
35
affordable housing projects, and that program has done extremely well over the past four (4)
years. You've seen the Princeville development go online, you've seen two (2) phases of the
Rice Camp Housing go online, you've seen both Lima Ola, as well as Koa`e down in Po`ipu, get
the entitlements with an anticipated groundbreaking within the next year. There are several
hundred units that have been completed and are in the works. But as has been presented by the
Housing Agency, they can't build it all. Of those 9,000 units we need by 2035, roughly 5,200
units we need by 2025, the County Housing Agency is doing a wonderful job, but they can't
build it all. Ultimately, we need to provide impetus and an avenue whereby housing units — in
particular, housing units that will be aimed at the local families and the local demand — can be
met because we are very much lacking in supply. With the ARU Bill being proposed originally,
it was looking at somewhat in akin to the way that the ADU Law was proposed back in the 80s
and that was just to provide an opportunity for families that have a single-family dwelling to
construct a second dwelling on their property. The way it was originally proposed for the ADU
was to ultimately help out `ohana situations; many refer to it as `ohana housing. After that bill
was passed, we've tracked it in the past twenty (20) years since then, roughly 1,000 units have
been built within the Residential zoning district through the ADU entitlement. So the ARU is
looking at saying let's see if some families, some landowners at the micro level — not talking
about the massive developer level, at the micro level — if they want to put another small rental
unit on their property and whether that rental unit would be able to accommodate elderly
populations whether they are parents aging in place, or accommodate children returning home
from college or are looking for a place to stay, essentially, to provide for that additional
opportunity, as well as if there is no need within the `ohana itself, to provide additional supply
for the rental market. The ARU Bill essentially... well, that was within the Lihu`e District. You
folks debated it for quite some time. Ultimately, it went up to the County Council and there was
some concern at the County Council level about the fairness of restricting an ARU entitlement
solely to Lihu`e and the sense that after all, there are several parts of the island where you have
communities desiring access to be able to build another small unit on their property and why
would we unfairly restrict it solely to Lihu`e. In response to that, the Planning Department took
several meetings with various neighborhood associations, with various industry associations, and
ultimately, we began meeting with the Kauai County Council Affordable Housing Task Force
Committee. In that Committee, what ultimately arose was there is a desire to have an island -
wide ARU policy. Councilmember Brun, who is the Housing Committee Chairperson, and
Councilmember Chock, who is the Planning Committee Chairperson, co -introduced legislation
that you folks have before you today for an island -wide ARU policy.
To give it in a nutshell, essentially, the ARU is an additional dwelling entitlement that would be
allowed for every single primary dwelling entitlement a property has. It would allow you to
build that second unit, either a new structure or convert within your existing structure to make it
two (2) units, and there is a maximum square footage of 800 square feet that is being proposed
on these things with a prohibition on CPR'ing the ARU off. The reason behind the prohibition
on the CPR is to ensure that the ARU units that are constructed won't go on to the speculative
market for investment purposes, per se, so they always have to ride along with the primary
dwelling, either you are allowing additional family members to utilize this new density or you
are utilizing the rental market, but you can't sell it off for speculative purposes. To take a step
back, the 800 -square foot restriction was primarily proposed because in looking at speculative
investment properties or the second home market from the mainland, for the most part when the
36
smaller unit comes online — it is not to say that it wouldn't be available to the second home
market from the mainland if they just wanted to rent it, they couldn't buy it — but by reducing it
in size, it does ensure that, for the most part, it is aimed at the local market; either it is aimed at
the elderly individual living in place that does not want to have any more children living with
them, per se, or the new couple that is married or starting a family. I can say that when I started
my family, myself, my wife, and our son lived in a 750 -square foot apartment ourselves for
several years. So it is really trying to aim it at that local market for which there is not much
product right now. That is the ARU in a nutshell.
I do have to put some disclosure in the fact that — the Department is doing its assessment — the
ARU will ultimately be a third or fourth unit when you take into an analysis of the calculation of
the landowner. Because every property has a ... every residential property, I should say, has the
outright ability to construct two (2) units. You either can build a second house or you can build
an additional dwelling unit. Every lot of record within the Residential zoning district has that
ability for which there are no restrictions on those types of uses. The ARU, then, which has the
additional provisions of no CPR'ing, restriction in size, in talking with landowners and talking
with individuals, like the contractors or the realtors, they were very clear that every property
owner is going to take advantage of their existing dwelling or the ADU capability before they
would even access the ARU entitlement. And understanding that and how the Department of
Health regulates septic systems and the need for septic systems within any new residential
development, or access to a sewer I should say, is that you have to have a septic system for the
second unit, or access to a sewer, and you have to have a 10,000 -square foot lot in order to get a
single septic system. If you want a second septic system, you have to have an additional 10,000
square feet, and that ARU would require — if there is no access to a sewer — constructing a
second septic system for which the vast majority of the properties within the Residential zoning
district don't have that size. So understanding how the calculus of constructing the area you
would come behind the primary dwelling and the ADU, and in conjunction with the
requirements of Department of Health, we have to be very clear that more than likely, you know,
99% of these units would only be able to take advantage of the entitlement in sewered areas,
quite frankly. So you are looking at Uhu`e, Puhi, Hanama`ulu, parts of Po`ipu, and parts of
Hanapepe and Waimea. The other areas, unfortunately — because they do not have access to a
sewer system right now, we would have to be quite frank — will probably not be able to construct
these in the near future. But we just want to put that as a disclosure notice, essentially.
With that, I hope that wasn't too muddy, but I am here for any questions or comments.
Chair Keawe: Commissioner Streufert.
Ms. Nogami Streufert: Can I ask you a question? Can an ARU be attached to an ADU?
Mr. Hull: As the way the bill is proposed, yes. So the way the bill proposes an ARU is that an
ARU entitlement would go with any entitled primary dwelling on a property, so that would
consider the first dwelling, as well as the ADU.
Ms. Nogami Streufert: So technically, if you had an ADU unit on your lot, you could have two
(2) ARUs.
37
Mr. Hull: Correct; one in addition to the ADU and one in addition to the primary dwelling. That
is, in theory, how it works. At the same time, you need to be cognizant of the fact that all the
other setback requirements, lot coverage at this point, are still required. There are many
properties, quite honestly, even if you give them this entitlement that just because they have built
it out fully, probably would not be able to meet further setback or lot coverage requirements, as
well as ... what is being proposed in the current draft bill is that they have to have an additional
parking stall on-site, off-street for each ARU constructed. So if, say, a property has constructed
fully maxed, one of the zoning requirements is that in a residential lot, you can only have 50%
lot coverage of impervious surface. Now, you've got to put another parking stall on there with
your ARU, even if you didn't take any other land up to build your ARU. Say you have a 4 -
bedroom house and you decide to convert two (2) bedrooms into a kitchen and a single bedroom
with a bathroom without thereby expanding the size of the house, but now with that wall and
second kitchen, you've constructed a multi -family unit on the property. Even with that — you
haven't expanded the lot coverage — but the bill still requires you to provide off-street parking for
the ARU. You wouldn't be able to fit the off-street parking on a property that is already built out
at 50% lot coverage.
Ms. Nogaini Streufert: The off-street parking, even if it were just grass, it would still constitute a
part of the coverage area?
Mr. Hull: No, they would have to put a certain amount of impervious surface for the off-street
parking.
Ms. Nogami Streufert: Okay.
Chair Keawe: Commissioner Lord.
Mr. Lord: Thank you. Are ARUs proposed to be pennitted in the VDAs?
Mr. Hull: Right now, there is no prohibition on them in the VDAs. The one (1) VDA that would
have access to it would be Po`ipu under the current proposal.
Mr. Lord: Okay.
Ms. Apisa: What about Princeville? Except Princeville's rules are single-family.
Mr. Hull: Yes, I apologize, Princeville would also have it because Princeville also has access to
a sewer system. We have been informed by the Princeville Community Association that under
their CC&Rs, they would not be allowing ARUs.
Mr. Lord: Have you done an analysis on an estimate of the number of ARUs that would be built
over time?
Mr. Hull: That question comes up frequently and it is hard to determine because at the end of the
day, it is just providing the entitlement to the property owner. Whether or not they are going to
construct, because it still is a significant sum of money ... we did have one of our in-house
W
technicians draft up a potential straight conversion, like just took a 3 -bedroom typical,
traditional, plantation house and put a wall through it, and converted two (2) bedrooms into a
studio apartment with a bathroom and kitchen. A contractor took a look at that and gave about a
$60,000 to $80,000 estimate —just for the wall and kitchen inside — and the contractor pointed
out if you move it exterior and construct a whole new structure, you are looking at $120,000 and
upward. So while the ARU Bill provides for an additional avenue to construct... because if
anybody knocks on the Planning Department's door right now — on a residential property that
has, say, a house and an ADU — and says that I would like to build another unit, I have some
space, and I actually have the finances available for it, the Planning Department has to stop them
there immediately. Regardless of it being provided for family (or) affordable housing, we just
have to stop them because we have to say that property does not have the density to build a third
unit. So this is just freeing up these type of properties so that they can build.
Mr. Lord: Sure.
Mr. Hull: Whether or not each individual property owner has the finances and can do it, it is
kind of up to them, so it is hard for us to make that analysis. I can say in looking ... like with the
ADU, they built a thousand in the Residential (district) over the past twenty-five (25) years.
Mr. Lord: Do you know how many existing homes, given the restrictions you have in areas and
other things — lot coverage — do you have an estimate of the potential number of homes that
could be affected?
Mr. Hull: We can get you that number. The reason we are hesitant to provide those numbers —
but we can get you that number — is because it depends, like...the only properties you could say
definitely cannot would be those properties that don't have access to a sewer or those properties
that are 50% built out. Because what they want to convert that ARU to ... and perhaps they have
a 1,200 -square foot house and chopping it in half and saying 600 square feet is appropriate, they
can live within those parameters, but there are some families that might say I will absolutely not
live in a 600 -square foot studio, so it comes down to personal preference. But if you do want the
numbers as far as the lot coverage is concerned—
Mr. Lord: I understand that the number of potential units is not near what the actual amount that
gets built out would be. I am just trying to understand the capacity. So I guess my last follow-up
was ... the logic in requiring it to be only to properties that have sewer — can you give me a little
feedback on why you couldn't do septic if the septic had capacity?
Mr. Hull: No, no, definitely. There is nothing in the bill that restricts it only to the sewered
areas. The way Department of Health reviews applications is that ... let's say the bill passes as is.
There are no restrictions to only sewered areas. But when you submit an application for a
building permit for your ARU, it is going to go ultimately to the Department of Health and the
Department of Health's comments are that one (1) septic system can only service no more than
two (2) dwelling units, and a septic system needs 10,000 square feet to be viable. As I was
pointing out, because every property has an ADU entitlement already — every residential
property has either the ability to build a second dwelling unit or to build an ADU — the vast
majority, 95% of these properties, are 10,000 square feet or smaller, so they could only fit one
39
(1) septic system on their property. And because the ADU entitlement is already there or the
second dwelling entitlement is already there, because there are no restrictions on those
entitlements, no property owner, generally, is going to walk to the Planning Department and say
I want to build my ARU before I build my ADU; so they are going to go after the ADU
entitlement or the second dwelling entitlement. But once they've constructed that second
dwelling, only those guys that have built out to the max will begin considering the ARU. So
when they apply for the building permit, the only way Department of Health is going to pass
them, again, is if they have enough space for that second septic system, which most of thein
don't, or they have access to a sewer. So there is no specific requirement here for a sewer, but
just in the way that building permit regulations work and entitlements work, for the most part —
there is going to be a few properties that can do it — but for the most part, it will probably only
work out in the sewered areas.
Mr. Lord: Okay, thank you.
Chair Keawe: We have been going for two (2) hours, so we will take a quick recess right now;
about 10-15 minutes. Thank you.
The Commission recessed this portion of the meeting at 11:29 a.m.
The Commission reconvened this portion of the meeting at 11:41 a.m.
Chair Keawe: Let's reconvene. Mr. Hull, you have the floor.
Mr. Hull: Thank you, Chair. Before the Commission recessed, forgive me, I forgot to announce
that this morning we received the official comments from Department of Health. They were not
included in the packet as we received them at 8 o'clock this morning, but I did just circulate it to
you folks if you guys did want to take a look at it. As the Director pointed out, we do anticipate
a deferral, so we will make the full analysis and submit them to you at the subsequent meeting.
Are there any other questions or comments?
Chair Keawe: Commissioners? Mr. Ho.
Mr. Ho: Kaaina, if you do use it for a rental, how do you pay your tax? Do you have to give up
your homeowner's exemption?
Mr. Hull: If you are residing in the primary dwelling and that is your primary residence, you
have what is referred to as a homeowner's exemption. So if you construct an ARU attached to
the structure or on the property somewhere, you still hold the homeowner's exemption for that
first dwelling and that is taxed at about $3.05 per $1,000 of appraised value of the house. Now,
the ARU is not your primary dwelling; it is a second dwelling. If you are renting it out on the
open market at market rates, that ARU structure itself will be assessed at a $5.05 per every
$1,000 of appraised value of the ARU, so it is a bit higher in the tax bracket for the ARU. Now,
if you have family living in there and you are not charging them or you are providing the ARU
on the open market at affordable rental market rates set by the Housing Agency, you do qualify
for that reduced tax rate that is the same as the homeowner's exemption tax rate of $3.05 per
$1,000 of appraised value. You do have to submit paperwork to the Real Property Tax Division
annually to certify for that lower rate. But if you construct the ARU, you will either be at that
$5.05 or $3.05 (rate) depending on the rate you are renting it at.
Mr. Ho: One more.
Chair Keawe: Mr. Ho.
Mr. Ho: Has the Council considered letting people use more of their lot rather than the 50%
coverage; go to 60 or 70%?
Mr. Hull: Yes, there was some discussion of that at the Affordable Housing Taskforce
Committee and there was some dialog with Michael Moule over at the Engineering Division
because in order to help accomplish the construction and use of these type of units, which would
much more be aimed at local families, we would love more than nothing to say let's see how we
can accommodate more of them; in particular, if the lot coverage is a barrier to entry. But lot
coverage, among other things, helps ensure that stormwater runoff in the area does not negatively
impact the community and adjacent properties. Michael Moule, the Engineering Division Chief,
did weigh in on the discussion with some ideas; however, when we were working with the
Taskforce Committee, we never got official comments from them. I think it is a very valid
question, Commissioner, and if you want, we can submit that question over to the Engineering
Division to get a response as to if and at what level may be permissible to increase the lot
coverage for the construction of these ARVs that would not thereby have a negative impact on
the stormwater runoff of the area. There could be some increases possible, there may not be any
at all, but we would be more than willing to submit that over to the Engineering Division.
Chair Keawe: Any other questions? Mr. Hull, what is your recommendation to the
Commission?
Mr. Hull: With some of these questions — in particular, Commissioner Ho's questions for
looking at further information as far as taking advantage of lot cover, as well as Commissioner
Wade's discussion on the potential capacity of properties that would have access to this
entitlement — the Department would like some additional time to gather that information and
submit to you folks for further analysis and review.
Chair Keawe: So we are looking at deferring this issue until?
Mr. Hull: The Department would request the second meeting in January, which would be
January 23`d
Chair Keawe: You know, that one is filling up real quick.
Mr. Hull: At the Commissioners' pleasure, we could also look at the February meetings as well.
I don't think there is any particular...
Mr. Ho: Kaaina-
41
Chair Keawe: Mr. Ho.
Mr. Ho: This is not going to hold up the Council from either moving forward or against it.
Mr. Hull: They would not take action until ... well, technically the bill is here, so until you folks
are done with your review, they can't review it.
Chair Keawe: Until we actually do something, they can't do anything. They sent it to us for our
approval, so they can't move forward unless we approve.
Mr. Ho: Could I suggest that we move on it and just get it out to them so that—
Chair Keawe: Well, I mean, the recommendation from the Department is to defer it to January.
Mr. Hull: I will say that that recommendation is just contingent on some of the questions the
Commissioners had and solely because of that. If it is your will, Commissioner Ho and
Commissioner Wade, to say that I've got enough, you know what, move it out, the Department
would have no objections. But at the same time, we have no objections looking into the
infonnation you folks requested, so I kind of put it in your hands.
Chair Keawe: Commissioner Lord.
Mr. Lord: I think my request for clarification shouldn't hold up a decision.
Chair Keawe: Okay.
Mr. Lord: I would like to have the information, but I don't think it should be contingent on that.
Chair Keawe: Commissioner Apisa, your opinion.
Ms. Apisa: I really have nothing to say, so I don't need a mic. (Laughter)
Chair Keawe: Okay. Commissioner Ahuna, do you have enough information to make a
decision?
Ms. Ahuna: Yes.
Ms. Apisa: Yes, I think so.
Chair Keawe: Commissioner Mahoney.
Mr. Mahoney: Chair, in regards to the Contractors Association's letter about Chapter 444 and
the owner -builder law, is there any objection about including language in there?
Chair Keawe: Well, if we include language, then we are going to have to take it out and be
specific on what language we want to include.
CEJ
Mr. Mahoney: (Inaudible) so it is understood. I mean, it is a law anyway, but some people get
caught in that owner -builder web.
Chair Keawe: Yes. Mr. Hull, your opinion.
Mr. Hull: The Department met with the Contractors Association about a year ago to discuss this
and it was brought up and there are valid concerns under the fact that there are specific
requirements under Hawaii Revised Statutes that if you are going to construct a unit that you are
going to provide on the open market, a certified and licensed contractor has to be the one
building it. There are some homeowners that take advantage of an exemption within that section
of Hawaii Revised Statutes that allows a contractor not be necessary if you are using it just for
your own sole residential purposes or your immediate families. The Contractors Association's
concern ultimately comes down to what if they construct these things for the families initially
and then they rent it out on the open market. There is a valid concern for that. I think as you
pointed out, Commissioner Mahoney, it is an existing law. I can say that generally — and we are
going to get into this discussion later on next year when we get into the Shoreline Setback
Ordinance — but generally the Department does not recommend including language in a County
ordinance that already is State law just because it gets redundant. And it is not that it is bad to
reiterate it, but often times when we see an initial motion to do one thing in State law, other
individuals want to start, kind of, hanging — somewhat a kin to a Christmas tree — more State
laws onto a County ordinance that makes the ordinance itself not that accessible to the layman to
read just because it gets that much more harder to read. I will say, Commissioner Mahoney,
generally the Department does not encourage that, but it is a valid concern to have. So if you
would like language like that, we can work on including it. I would say we are not ready to
include it today, but we can work on providing that language at the next meeting that this is held
at.
Ms. Apisa: But the law does state that it has to be owner -occupied for at least one (1) year.
Chair Keawe: Right.
Mr. Hull: For the HRS 444, yes.
Ms. Apisa: Right.
Chair Keawe: Commissioner Mahoney, did that answer your question?
Mr. Mahoney: Well, I mean, not to be redundant but those laws are in effect, and as public
awareness, the owner -builder law has probably been the most violated thing in its existence and
there are ramifications if you don't follow it to the letter. I just wanted to bring that awareness
out there. If it is a redundancy, then—
Chair Keawe: Okay. Commissioner Streufert.
43
Ms. Nogami Streufert: There seems to be a lot of issues or concerns that have been brought up
and probably not very much is going to be done at the Council between now and New Year's, so
could we defer this to the first meeting in January as opposed to—
Chair Keawe: January 91h9
Ms. Nogami Streufert: Right, which would be right after New Year's and then some of these
issues might be resolved by the Planning Department before then.
Chair Keawe: And it would give the Planning Department an opportunity to look at that
document from the Contractors Association and see how they might reword it into the final draft.
Ms. Nogami Streufert: Right, so that everyone is satisfied that some of their concerns are taken
into account.
Chair Keawe: Yes. Mr. Ho.
Mr. Ho: She speaks for me.
Chair Keawe: Okay.
Mr. Lord: I have a question, Chair.
Chair Keawe: Yes, Commissioner Lord.
Mr. Lord: The logic of allowing it in the VDAs — does that open up a can of wonns where these
units then get used for ... become, then, visitor rental units?
Mr. Hull: I think that is a valid concern, Commissioner. Not all, but the vast majority of
residential units within the VDA are in vacation rental usage. Is there a desire to increase any
more vacation rental units in those areas or overall on Kauai? I can say that is not at all the
intent of the ordinance. Because there are no particular measures, right now, proposed to prevent
it in the VDA, could it increase a handful? It could, quite honestly. As far as a provision of not
allowing them ... there is a provision proposed that they not be utilized for TVRs or homestay
usage; that is in there and that is regardless of whichever Residential zoning district they are in.
So if they are in the VDA and they try to put one of these in a TVR or homestay use, under
statutory construction while VDAs cannot have TVRs and homestays, because this explicitly
states ARUs shall not be used for it, it would not be pennissible in the VDA. Having said that, I
will be quite honest, our enforcement team is much more concerned with illegal vacation rental
usage outside of the VDA, and to try and monitor whether or not the vacation rental is occurring
in an ARU within a specified property in the VDA, given our resources it would not be a priority
to go after. So if there is concern over that and about saying that it should not be allowed in the
VDA, I don't think the Department would have any objections, quite honestly.
Mr. Lord: Thank you.
Chair Keawe: Okay. Mr. Ho.
Mr. Ho: Kaaina, the last section of this bill, it says it is going to sunset in five (5) years. Is there
a reason for that?
Mr. Hull: There was some discussion that by proposing ... I apologize. What section are you
looking, Commissioner Ho?
Mr. Ho: Section 6.
Mr. Hull: I guess that is what was proposed. Well, I will say when it was originally proposed in
the ARU for the Lihu`e District, the reason for that was to try and spur on property owners to
construct these units. The fact that we are in the midst of a housing crisis now and by putting a
sunset date — and it was actually proposed by the Housing Agency — it is a way that they've
gotten, on larger projects, larger developers to make sure that they build those units by giving
them entitlement for only a short time, so it was proposed in the original Lihu`e bill. I had
thought that it wasn't proposed in this one, but I do see it now. And that is why it is there, quite
honestly.
Chair Keawe: Okay, any other questions? Are we ready to make a decision? I think the
opinions I've heard are we want to do it today or we want to defer it until the first or second
meeting in January.
Ms. Nogami Streufert: I move that we defer this issue until the first meeting in January 2018.
Chair Keawe: Do I have a second?
Ms. Apisa: Second.
Chair Keawe: The motion is to defer this particular issue to the January 9, 2018 meeting. Can
we have a roll call vote, Kaaina?
Mr. Hull: Yes. Commissioner Ahuna.
Ms. Ahuna: Aye.
Mr. Hull: Commissioner Lord.
Mr. Lord: Aye.
Mr. Hull: Commissioner Streufert.
Ms. Nogami Streufert: Aye.
Mr. Hull: Commissioner Mahoney.
45
Mr. Mahoney: Aye.
Mr. Hull: Commissioner Apisa.
Ms. Apisa: Aye.
Mr. Hull: Commissioner Ho.
Mr. Ho: Aye.
Mr. Hull: Chair Keawe.
Chair Keawe: Aye.
Mr. Hull: Unanimous vote, Chair. (Motion carried 7:0.)
Chair Keawe: Alright, thank you.
UNFINISHED BUSINESS (For Action) (Continued)
Class IV Zoning Permit Z -IV -2017-6 and Variance Permit V-2017-2 to deviate from the
minimum lot size requirement within the Agriculture (A) zoning district, pursuant to
Section 8-8-3(b) of the Kauai County Code 1987) as amended, involving a parcel
situated on the makai side of Kuhi6 Highway in Kilauea, approx. 600 ft. north of the
Waiakalua Street/Kuhi6 Highway intersection and further identified as Tax Map Key (4)
5-1-005:132 and affecting a total area of 27,450 sq. ft. = Brian Lansing & David Camp,
FDirector's Report (DR) received 3/28/17 DR Sup 1 received hearing deferred 4/11/17,
DR Sup 2 & 3 received, hearing deferred 6/27/17.1
Chair Keawe: Okay, the last item is—
Mr. Dahilig: Mr. Chair, if we could return back to the Lansing matter under Item L.1, what we
have circulated to the Commission is a copy of an email that Chance received in his inbox at
4:23 yesterday afternoon, so that is why we haven't even had the chance to kind of digest it. But
what you can see from the email that has been circulated is that Michelle from De Costa Hempey
Meyers has communicated to Larry, which was then forwarded over to us by Esaki, that the DOT
is looking at a 180 -day deadline on negotiations. Typically, when you look at a situation where
an application is denied, an applicant has the ability to come back within six (6) months under
the Code to reapply. What I suspect they are going to be asking for, in terms of a deferral, given
that the very bottom of the page it says the DOT is putting a 180 -day deadline on negotiations.
The negotiation period is going to go at least six (6) months, so the reality is if this is or is not
successful, the minimum amount of time that would be asked for the deferral would be six (6)
months anyway. So the question for the Commission is whether to defer the matter beyond the
180 -day deadline that Larry is supposedly saying they are agreeable to, or not. The net effect of
this, essentially, is if you do defer it out, you are saving them approximately $1,800 in filing
EI
fees; that is what it comes down to. That is the best I can digest it, Commissioners, that we still
stand from a departmental standpoint on the merits of our evaluation concerning a denial. We
have circulated, again in paper form, the Findings of Fact, Conclusions of Law, Decision and
Order that are proposed to be adopted as part of the denial motion should the Commissioners
choose to accept our recommendation. There are a couple of changes that would have to be
made concerning dates that I will refer over to the Attorney to suggest, but again, it is the
Commissioners' discretion to defer this 180 days or more, or we can go through a denial; they
will be entitled to apply six (6) months from now anyway.
With that, Commissioners, that is what we can surmise as the missing pieces of information
given the exchange earlier.
Chair Keawe: Okay. Opinions?
Ms. Ahuna: I have a question. If denied, then this goes back to DOT?
Mr. Dahilig: If this is denied, they would still conceivably be able to engage in negotiations with
DOT for what they need and then come back and apply if they actually get the agreement.
Ms. Ahuna: And should they not get permitted in the future or negotiations are not ... you know,
whatever, does this divert back to DOT property? I don't understand.
Mr. Dahilig: It is DOT property.
Ms. Amina: It is DOT property?
Mr. Dahilig: Yes, it is DOT property now.
Chair Keawe: Any other opinions? Commissioner Streufert.
Ms. Nogami Streufert: By denying this now does not prevent them from any other point of
time ... they can still go through the negotiations with the Department of Transportation—
Chair Keawe: Yes.
Ms. Nogami Streufert: —and would have to, then, come back. Is that correct?
Mr. Dahilig: Yes.
Ms. Nogami Streufert: It does not deny them forever.
Mr. Dahilig: No.
Chair Keawe: No, no. If we did deny, then they can still go ahead and negotiate with the DOT
and get an agreement, and then make a new application.
MA
Ms. Nogami Streufert: Right.
Chair Keawe: So that is one (1) option.
Ms. Ahuna: So the process would just restart for them.
Chair Keawe: Yes, it would restart, but at least they have an indication from DOT that they are
willing to talk about it. There is no reason ... I mean, they've tried that a couple times, so
anyway, that's where we are at. We need to decide whether we approve it, we defer it, or deny
it.
Anymore thoughts? Mr. Mahoney, anymore thoughts?
Mr. Mahoney: No.
Chair Keawe: No?
Ms. Ahuna: (Inaudible), correct?
Mr. Dahilig: Pretty much because their email clearly states they have 180 days to negotiate,
which is aligned with our ... there is a rest period that the Code prescribes as when you can
reapply if you were denied something. If the denial happens today, they would have six (6)
months from today to be able to reapply again.
Ms. Apisa: Within or after?
Mr. Dahilig: After.
Ms. Apisa: Beyond.
Ms. Ahuna: They would just have to restart the process.
Mr. Dahilig: Restart the process.
Chair Keawe: Anybody?
Ms. Apisa: It is kind of a...
Chair Keawe: It is. It is very difficult.
Ms. Apisa: It doesn't really matter. I mean, there's not a (inaudible) consequence either way.
Chair Keawe: Yes. Do you have anything else to add?
Ms. Arismendez-Herrera: I just wanted to mention that if the Commission will entertain a
decision today that I please get a chance to present some facts regarding the application.
Chair Keawe: I'm sorry. What was it?
Ms. Arismendez-Herrera: If the Commission decides to vote today, that I get a chance to present
facts regarding the application.
Chair Keawe: I think we've already heard everything we need to on this particular item. I mean,
you've come before us several times already and I think we've been more than lenient in trying
to work with you and your client to get it done. So I don't know if you need to present anymore
facts or anymore drawings or anything else about the application. I think we understand that
well.
Commissioner Streufert.
Ms. Nogami Streufert: Could I ask one (1) question?
Chair Keawe: Sure, absolutely.
Ms. Nogami Streufert: From my notes, this was deferred at least from March of this year to
April and now to today. It is pretty late to have gotten the information yesterday at 4:30 in the
afternoon or whatever. Can you give us some information about why it took that long to get to
this stage where you are now back in negotiations? I just want to understand the rationale for
why it took this long to get — at the eleventh hour — to come up with a negotiation or at least a
consent to negotiate with the Department of Transportation. Can you give us any kind of
information about how that happened?
Ms. Arismendez-Herrera: They have been talking with ... well, by "they" I mean the attorneys
for the owners with DOT, but the agreement from DOT didn't happen until yesterday afternoon.
Their previous stance was as described earlier where they were not willing to enter into
negotiations.
Ms. Apisa: Question. Does being "not willing to enter into negotiation" mean that they weren't
willing to give up that piece of land or they just didn't want to talk about it?
Ms. Arismendez-Herrera: They were not willing to give it up.
Ms. Apisa: But now they are...
Ms. Arismendez-Herrera: But now ... right. Well, I mean, if we go back to the start, this is a long
history of...where at first it was up for purchase, then not, and now back again, I guess.
Chair Keawe: Donna, there actually was a preliminary agreement with a price that was set and
also with some conditions that they had to produce certain things, and that did not happen. So
when they came back the next time, they said look, we had already given you the price and the
terms and conditions and you didn't perform on it. And then we gave them ... like Glenda said,
we've done it three (3) times. So I guess my question ... and I don't know if you would know,
49
but do they have the ability to perform because I think it is coming down to dollars and cents.
You know, they said this is going to cost "x" amount of dollars.
Ms. Arismendez-Herrera: Oh, yes, they have the funds to purchase.
Chair Keawe: So why didn't they do it—
Ms. Arismendez-Herrera: It is just getting back on track with DOT. There was a
miscommunication or misunderstanding between the previous agreement where the owner
thought that they were waiting on the DOT to get the go-ahead and I think actually DOT was
waiting for the owners/applicants to go ahead with the rest of the approvals.
Chair Keawe: Okay, well... Okay, Commissioners, what do we want to do?
Ms. Apisa: I will make a motion that we go with a 6 -month deferral, I guess.
Chair Keawe: Okay. Do I have a second?
Ms. Ahuna: I will second.
Chair Keawe: Okay. Discussion on the motion.
Mr. Ho: If we do defer, are we looking at a timeline?
Ms. Ahuna: Six (6) months is what the DOT gave, right?
Mr. Ho: At least 180 days.
Ms. Nogami Streufert: To negotiate.
Chair Keawe: Well, it is just six (6) months to negotiate.
Mr. Dahilig: I want to be clear, Commissioners, that notwithstanding this issue with what they
are explaining, even on the merits of the variance standards, we are still going to be
recommending denial. It was asked as a courtesy to have this issue be resolved parallel with
what is going on, but it still, in our opinion, is not dispositive on and has great bearing on our
department's recommendations concerning whether it will tip the scale in our weighing analysis
concerning whether they meet the variance standards. We still maintain that it does not confonn.
We do not see that there is an extraordinary situation for why a variance needs to be granted in
this circumstance as laid out in the Decision and Order. So I think what has been done as a
courtesy by the Commission has been wanting to just hear all the information and see whether or
not this would be resolved at their request. Now certainly, again, the only net effect of this is
that there will either be a saving of filing fee or not, and I think that is what it comes down to.
50
Chair Keawe: We have a motion on the floor. Do we have a second? We asked for a second.
Do we have a second? Oh, Kanoe, okay. So it was moved and seconded to defer for six (6)
months. Donna, is that...?
Ms. Apisa: Well, it is on the floor, so we might as well just take a vote and see if it passes or not.
Chair Keawe: Yes. Let's do roll call.
Mr. Dahilig: The motion on the floor is to defer ... if I could suggest, Commissioner Apisa, a
specific date just so that we are clear on six (6) months. It would be May 8, 2018. Is that
acceptable?
Ms. Apisa: That is acceptable.
Mr. Dahilig: Okay. The motion on the floor is to defer this matter to May 8, 2018.
Commissioner Ahuna.
Ms. Ahuna: Aye.
Mr. Dahilig: Commissioner Lord.
Mr. Lord: No.
Mr. Dahilig: Commissioner Streufert.
Ms. Nogami Streufert: No.
Mr. Dahilig: Commissioner Mahoney.
Mr. Mahoney: No.
Mr. Dahilig: Commissioner Apisa.
Ms. Apisa: No.
Mr. Dahilig: Commissioner Ho.
Mr. Ho: (Silent)
Mr. Dahilig: Chair Keawe.
Chair Keawe: No.
Mr. Dahilig: Six (6) no's, onv (1) aye; motion does not carry.
51
Chair Keawe: Okay. In lieu of that, we do have ... the Department has provided a Findings of
Fact, Conclusions of Law, and Decision and Order for this particular permit application. Have
you guys all seen it? You got it?
Mr. Dahilig: Mr. Chair, I just want to clarify that this has only been provided in the event that
the Commission wants to make a motion to deny. If you choose to snake a motion to approve,
you do not need this D&O.
Chair Keawe: I understand. Since that didn't pass, we need to decide if we snake a motion to
deny—
Mr. Dahili . Or approve.
Chair Keawe: Or approve. And then if we make the motion to deny, then we would approve the
Decision and Order?
Mr. Dahilig. Yes.
Chair Keawe: Okay. Does everybody understand?
Ms. Apisa: The Planning Commission's Decision and Order?
Chair Keawe: If we go in that direction to deny the application and the permit, then subject to
that, we would approve the D&O that the Department has given us. Is that right?
Ms. Higuchi Sayegusa: Yes, that was right. If that is the direction you folks are going, I would
just like some leeway to provide a little bit of edits to the D&O as drafted.
Chair Keawe: Okay.
Ms. Apisa: And then itis their choice if they want to accept that or reapply, then, down the road.
Chair Keawe: Yes. If we deny the application currently, they can still negotiate with DOT.
Ms. Apisa: And come back.
Chair Keawe: And then try to come back. But as the Planning Director said, they are still going
to ... you know, because it doesn't meet the requirements as far as lot size and percentage of what
they want to do, so I think it would be difficult, but hey, that's for future ... if we decide to deny.
Ms. Apisa: Okay. I guess having a little clearer picture, I will reverse my motion.
Ms. Higuchi Sayegusa: I'm sorry. Could you state, for the record, what your motion may be?
Ms. Apisa: Yes, getting there.
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Ms. Higuchi Sayegusa: Okay, sorry.
Ms.AAnisa: My motion, then, would be to deny the request for an extension. Is that—
Mr. Dahilig: If I could, maybe, suggest—
Ms. Apisa: Yes, please.
Mr. Dahilig: If your intention is to deny, it would be to deny the Variance and Class IV Zoning
Permits; approve the Findings of Fact, Conclusions of Law, and Decision and Order; and
authorize the Deputy County Attorney to make form, legal, and character amendments related to
a final form of the Order for the Chair to sign.
Ms. Apisa: Right. I would agree with that. Thank you for cleaning it up and giving me the right
wording.
Mr. Dahilig: Okay.
Chair Keawe: Okay. Do we have a second for that motion?
Mr. Mahoney: Second.
Chair Keawe: It has been moved and seconded. Since we did a roll call on the first, we will do a
roll call on the second.
Mr. Dahilig: Okay. Mr. Chair, the motion on the floor is to deny Variance Permit V-2017-2 and
Class IV Zoning Permit Z -IV -2017-6; and approve the Findings of Fact, Conclusions of Law,
and Decision and Order as circulated; and authorize the Deputy County Attorney to make edits
relating to form, character, and legal edits before signing of the Chair.
Chair Keawe: Okay.
Mr. Dahilig: An "aye" motion [sic] is to deny. Commissioner Ahuna.
Ms. Ahuna: To deny?
Mr. Dahilig: Yes.
Chair Keawe: An "aye" vote is to deny.
Mr. Dahilig: "Aye" is to deny, "nay" is to not deny.
Ms. Ahuna: Nay.
Mr. Dahilig: Nay. Commissioner Lord.
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Mr. Lord: Aye.
Mr. Dahilig: Commissioner Streufert.
Ms. Nogami Streufert: Aye.
Mr. Dahilig: Commissioner Mahoney.
Mr. Mahoney: Aye.
Mr. Dahilig: Commissioner Apisa.
Ms. Apisa: Aye.
Mr. Dahilig: Vice Chair Ho.
Mr. Ho: (Silent)
Mr. Dahilig: Chair Keawe.
Chair Keawe: Aye.
Mr. Dahilig: With a silent vote, that is 6:1, Mr. Chair. Motion is approved.
Chair Keawe: Okay, motion is approved. Thank you.
Ms. Arismendez-Herrera: Thank you for your time.
ANNOUNCEMENTS
Topics for Future Meetings
The following regularly scheduled Planning Commission meeting will be held at 9:00
a.m. or shortly thereafter at the Lihu`e Civic Center, Mo`ikeha Building, Meeting Room
2A-213 4444 Rice Street Lihu`e Kauai, Hawaii 96766 on Tuesday, November 28,
2017.
Mr. Dahilig: Mr. Chair, those are all the items on the calendar for this afternoon now. I
understand that there is an executive session that is still open, and would like to just let the
Commissioners know that we have circulated the on deck sheets, so you will notice that we have
one (1) application in the first meeting ... with other stuff, but we have one (1) application coming
the first meeting of January, one (1) application coming the second meeting of January. Given
the calendar, the next regularly scheduled meeting will be on — contrary to what the agenda says
— January 9, 2018.
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Chair Keawe: Okay. Go ahead, Jodi.
EXECUTIVE SESSION (Continued)
Pursuant to Hawaii Revised Statutes Sections 92-5(a)(2 and 4)the purpose of this
executive session is to discuss matters pertaining to the evaluation of the Planning
Director over the past and current fiscal year and to discuss any updates to fiscal year
goals. This session pertains to the Planning Director's evaluation where consideration of
matters affecting privacy will be involved. Further, to consult with legal counsel
regarding powers, duties, privileges and/or liabilities of the Planning Commission as it
relates to the evaluation of the Planning Director.
Ms. Higuchi Saygusa: Again, Chair, we still have pending the executive session, which we
elected to reconvene during lunchtime. If we could get a motion to reenter executive session and
immediately adjourn the regular agenda. And, of course, after that we still have the two (2)
contested case matters for after lunch, but just to close out the regular agenda.
Mr. Mahoney: Chair?
Chair Keawe: Yes, sir.
Mr. Mahoney: Move to go into executive session and close out the regular agenda.
Ms. Noaami Streufert: Second.
Chair Keawe: When we are done with the session?
Mr. Mahoney: When we are done with the session, yes.
Ms. Nogami Streufert: Second.
Chair Keawe: Okay, so it has been moved and seconded to go into executive session and close
the regular meeting at the conclusion of that. Any discussion on that?
Ms. Apisa: Second.
Chair Keawe: I think it was seconded.
Ms. Apisa: Oh, was it?
Chair Keawe: Yes, it was seconded; Glenda seconded. Alright. All those in favor?
(Unanimous voice vote) Any opposed? (None) Motion carries 7:0. Thank you.
The Commission entered into executive session at 12:16 p.m.
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ADJOURNMENT
Chair Keawe adjourned the meeting at 1:07 p.m.
Respectfully submitted by:
rcie Agara ,
Commission Support Clerk
( ) Approved as circulated (add date of meeting approval)
( ) Approved as amended. See minutes of meeting.
Gr